in the Interest of G.B. II, a Child ( 2011 )

IN THE
TENTH COURT OF APPEALS
No. 10-10-00244-CV
IN THE INTEREST OF G.B. II, A CHILD
From the 52nd District Court
Coryell County, Texas
Trial Court No. 38594
OPINION
The parental rights of E.F. to her child, G.B.II were terminated by the trial court
after a bench trial. E.F. appealed that decision. We affirm.
BACKGROUND
E.F. was in prison when G.B.II was born. She returned to prison, leaving G.B.II
at the hospital without making arrangements for the baby. E.F. was released from
custody almost five months later and was placed in a “transition center” in Austin.
Almost a year after G.B.II’s birth, E.F. was attending bi-weekly visits with G.B.II but did
not bring anything with her to the visits. When E.F. would call the Department to
inquire about the visits, she would not ask how G.B.II was doing. As of ten days before
the final hearing in April of 2010, E.F. still had bi-weekly visits with G.B.II but still failed
to bring much with her to the visits. However, by the date of the final hearing ten days
later, E.F. had left the State without notifying the Department. Her caseworker did not
know where E.F. was currently living. Her caseworker also was aware that prior to E.F.
leaving the State, E.F. had been homeless for quite some time.
HOME STUDY
E.F. states as her first issue: “The Department is obligated under Section 262.114
of the Texas Family Code to conduct home studies on all possible relative placements,
and the failure to do so in this case constitutes reversible error.” Essentially, the issue
presented is whether the Department’s failure to obtain or complete a home study as
required by section 262.114 prevents termination of E.F.’s parental rights.
Section 262.114 provides:
Before a full adversary hearing under Subchapter C, the Department of
Family and Protective Services must perform a background and criminal
history check of the relatives or other designated individuals identified as
a potential relative or designated caregiver, as defined by Section 264.751,
on the proposed child placement resources form provided under Section
261.307. The department shall evaluate each person listed on the form to
determine the relative or other designated individual who would be the
most appropriate substitute caregiver for the child and must complete a
home study of the most appropriate substitute caregiver, if any, before the
full adversary hearing. Until the department identifies a relative or other
designated individual qualified to be a substitute caregiver, the
department must continue to explore substitute caregiver options. The
time frames in this subsection do not apply to a relative or other
designated individual located in another state.
TEX. FAM. CODE ANN. § 262.114(a) (West Supp. 2010) (footnote omitted).
However, courts have held that the failure to conduct or obtain a home study
pursuant to section 262.114 is not a bar to termination. Frank R. v. Tex. Dep't of Family &
Protective Servs., No. 03-09-00436-CV, 2010 Tex. App. LEXIS 2763, *7 (Tex. App.—Austin
In the Interest of G.B. II Page 2
Apr. 13, 2010, no pet.); In the Interest of J.F., No. 02-08-00183-CV, 2007 Tex. App. LEXIS
8108, *19-24 (Tex. App.—Fort Worth Oct. 11, 2007, pet. denied); In the Interest of C.C.,
No. 02-04-00206-CV, 2005 Tex. App. LEXIS 4096, *20 (Tex. App.—Fort Worth May 26,
2005, no pet). Additionally, a trial court does not abuse its discretion in determining
that it would be against the children's best interest to delay the suit to evaluate a
relative, risking dismissal of the case. In re Northrop, 305 S.W.3d 172, 177-178 (Tex.
App.—Houston [1st Dist.] 2009, no pet.); In the Interest of C.C., 2005 Tex. App. LEXIS
4096 at *20. Further, E.F. provides no authority, and we have found none, that suggests
there is either a statutory or a common-law duty imposed on the Department to make a
placement with a relative before a party's parental rights may be terminated.
Even if section 263.114 mandated the completion of a home study before
termination could occur, it would not be a bar to termination in this case. The relative
on whom a home study had not been completed lived in South Carolina. As the last
sentence of the statute states, “The time frames in this subsection do not apply to a
relative or other designated individual located in another state.” TEX. FAM. CODE ANN.
§ 262.114(a) (West Supp. 2010). By its own language, section 263.114 does not apply to
the underlying case in this appeal.
Accordingly, E.F.’s first issue is overruled.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
By her second issue, E.F. contends that trial counsel’s failure to timely request
findings of fact and conclusions of law constitutes ineffective assistance of counsel. E.F.
filed a statement of points with the trial court, but she did not include this issue as one
In the Interest of G.B. II Page 3
of her points. Pursuant to the Texas Family Code, we may not address an issue that is
not included in a timely filed statement of points. TEX. FAM. CODE ANN. § 263.405(i)
(West 2008); In re J.H.G., 302 S.W.3d 304, 306 (Tex. 2010). An appellant may make a due
process claim and raise ineffective assistance of counsel on appeal when there is a
complete failure to file the statement of points which precludes the reviewing court
from considering a meritorious complaint. See In re J.O.A., 283 S.W.3d 336 (Tex. 2009);
see also In the Interest of B.G., 317 S.W.3d 250, 256 (Tex. 2010). However, that is not the
situation here because a statement of points was filed. Further, even if a statement of
points had not been filed, E.F. did not raise a due process claim on appeal.
Accordingly, E.F.’s failure to challenge the effectiveness of her trial counsel in her
statement of points waives the issue on appeal.1 See In re J.H.G., 302 S.W.3d 304, 306
(Tex. 2010).
1 If we could review this issue, we would overrule it. In a trial to the court where no findings of fact or
conclusions of law are filed, the trial court's judgment implies all findings of fact necessary to support it.
Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989). However, where a reporter's record is filed, as in
this case, these implied findings are not conclusive, and an appellant may challenge them by raising both
legal and factual sufficiency of the evidence issues. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789,
795 (Tex. 2002). E.F. has raised a factual sufficiency of the evidence issue. Consequently, E.F. has not
shown that her counsel's representation fell below the standard of prevailing professional norms by not
timely requesting the trial court to enter findings of fact and conclusions of law. See In the Interest of
M.C.T., 250 S.W.3d 161, 172 (Tex. App.—Fort Worth 2008, no pet.). Further, the procedural history of this
case is somewhat unusual. In Interest of G.B., No. 10-10-00244-CV, 2010 Tex. App. LEXIS 9471 (Tex.
App.—Waco Nov. 24, 2010, order) (not designated for publication) (attached as an appendix to this
opinion). That history reflects some substantial thought was given to various procedural issues. In
particular, post judgment decisions were made which resulted in counsel having substantial additional
time before the judgment was final for purposes of appeal as well as for purposes of section 263.405. TEX.
FAM. CODE ANN. § 263.405 (West 2008). Without more to establish that having the relatively few findings
that are implied by the judgment reduced to writing was in some manner critical to the appeal, we could
not hold that counsel was ineffective for not requesting them sooner.
In the Interest of G.B. II Page 4
FACTUAL SUFFICIENCY
In her third issue, E.F. argues that the evidence is factually insufficient to justify
termination of her parental rights. The trial court found two predicate acts required for
termination and found that termination was in the best interest of the child. See TEX.
FAM. CODE ANN. § 161.001(1)(N), (O) & (2) (West Supp. 2010). E.F. contests the
sufficiency of the evidence as to both predicate acts but not as to the best interest
finding.
Termination decisions must be supported by clear and convincing evidence.
TEX. FAM. CODE ANN. §§ 161.001, 161.206(a) (West 2008 & Supp. 2010). Evidence is clear
and convincing if it "will produce in the mind of the trier of fact a firm belief or
conviction as to the truth of the allegations sought to be established." Id. § 101.007
(West 2008). In reviewing the evidence for factual sufficiency, we give due deference to
the fact-finder's findings and do not supplant the judgment with our own. In re H.R.M.,
209 S.W.3d 105, 108 (Tex. 2006). We must determine whether, on the entire record, a
fact-finder could reasonably form a firm conviction or belief that the parent violated the
relevant provisions of section 161.001(1) and that the termination of the parent-child
relationship would be in the best interest of the child. In the Interest of C.H., 89 S.W.3d
17, 28 (Tex. 2002). If, in light of the entire record, the disputed evidence that a
reasonable fact-finder could not have credited in favor of the finding is so significant
that a fact-finder could not reasonably have formed a firm belief or conviction in the
truth of its finding, then the evidence is factually insufficient. H.R.M., 209 S.W.3d at
108.
In the Interest of G.B. II Page 5
E.F. contends the evidence is factually insufficient to support the trial court’s
finding that E.F. constructively abandoned G.B.II because there was “no testimony” that
she failed to regularly visit or maintain significant contact with G.B.II and there was “no
evidence” that she was unable to provide G.B.II with a safe environment. See TEX. FAM.
CODE ANN. § 161.001(1)(N)(ii) & (iii) (West Supp. 2010).
Although E.F. regularly visited G.B.II once she was released from prison and
then a transition center, she did not maintain significant contact with him. She did not
bring anything with her to the visits and did not inquire about G.B.II’s well-being when
calling the Department. Further, sometime between the date the “Final Hearing Court
Report” was filed and the date the final hearing was held, that being ten days, E.F. left
the State without notifying the Department. E.F. also could not provide G.B.II with a
safe environment because she had been homeless for some time and left the State
without letting the Department know where she was living. After reviewing the entire
record, we find a fact-finder could reasonably form a firm conviction or belief that E.F.
constructively abandoned G.B.II.
Because only one predicate act, in this case subsection (N), under section
161.001(1) is necessary to support a judgment of termination when there is also a
finding that termination is in the child's best interest, we do not reach E.F.’s complaint
regarding the trial court’s finding under subsection (O). See In re A.V., 113 S.W.3d 355,
362 (Tex. 2003). Accordingly, E.F.’s third issue is overruled.
In the Interest of G.B. II Page 6
CONCLUSION
Having overruled each issue properly presented, we affirm the trial court’s
judgment.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed June 1, 2011
[CV06]
In the Interest of G.B. II Page 7
APPENDIX
IN THE
TENTH COURT OF APPEALS
No. 10-10-00244-CV
IN THE INTEREST OF G.B. II, A CHILD
From the 52nd District Court
Coryell County, Texas
Trial Court No. 38594
ORDER
This proceeding provides a good example of why the final termination
proceeding should not be heard by an associate judge unless there is an agreement to
not have a de novo hearing before the referring court. In this proceeding, the associate
judge signed an order terminating the parental rights of E.F. and G.B. to their child, G.B.
II, on May 14, 2010.2 E.F. timely requested a de novo review of the associate judge’s
order. TEX. FAM. CODE ANN. § 201.015(a) (Vernon Supp. 2009). The matter was set for
hearing before the referring judge on May 20, 2010. The record indicates that E.F.’s trial
counsel intended to “pass” on the hearing and waive her right to a de novo hearing;
however, there is not an entry on the docket sheet reflecting the waiver on that date.
2 G.B. is not a party to this appeal.
In the Interest of G.B. II Page 8
On June 25, 2010, E.F. filed a notice of appeal and a waiver of the de novo hearing. This
Court responded by questioning its jurisdiction because it appeared that E.F. was
attempting to appeal from an order that was not final and requested the parties brief the
issue. TEX. FAM. CODE ANN. § 201.106(b) (Vernon 2008).
We first determine whether the notice of appeal was timely filed. The initial
question before us is when E.F. waived de novo review resulting in the associate judge’s
order becoming the order of the referring court. TEX. FAM. CODE ANN. § 201.2041(a)
(Vernon 2008). While we do not approve of the delay caused by requesting a hearing
and then waiving it, the associate judge’s order became final only when the hearing was
expressly waived on June 25, 2010. The notice of appeal was timely filed on the same
date as the waiver. The notice of appeal was timely.
We next determine whether, in view of our order on August 11, we will proceed
on the associate judge’s determinations or the determinations of the referring court. In
the August 11 order, in an attempt to expedite the hearing process, this Court directed
the referring court to conduct all hearings, to the extent not already held, to comply
with TEX. FAM. CODE ANN. § 263.405 (Vernon 2008). Unknown to this Court at the time
of the order, the associate judge had already held a section 263.405 hearing and made
determinations. The referring court, in an effort to comply with this Court’s order, held
another 263.405 hearing. However, because the associate judge had already conducted
the 263.405 hearing and made determinations, the referring court’s determinations were
not necessary under our August 11 order. Nevertheless, E.F. requested a de novo
hearing of the associate judge’s rulings from the 263.405 hearing. Thus, the next
In the Interest of G.B. II Page 9
question is whether a request for a de novo hearing by the referring court after the
263.405 hearing is proper under the process of referral to an associate judge.
Section 263.405(d) states that the “trial court” shall hold a hearing after the final
order is signed. The associate judge was the trial court in this case. The associate judge
held the section 263.405 hearing on July 23. Appeal from the section 263.405 hearing is
directly to this Court and not to the referring court. TEX. FAM. CODE ANN. § 263.405(g).
Allowing a de novo review by the referring court after the 263.405 hearing would
impede the legislature’s purpose of making this an accelerated appeal to expedite the
process for bringing certainty to the lives of the children who are the subject of these
suits. Therefore, we hold that we must proceed on the associate judge’s order and that
an “appeal” of a 263.405 hearing is not to the referring court.
The associate judge found that E.F. is indigent and that the appeal is frivolous.
The Department does not challenge the associate judge’s finding that E.F. is indigent.
Therefore, we uphold the finding of indigency.
The associate judge found that the appeal was frivolous because the notice of
appeal was untimely. Having found that the notice of appeal was timely, we reverse
the associate judge’s finding that the appeal is frivolous as untimely filed. Accordingly,
the parties must proceed to merit briefing as soon as the full record is available. All
appellate deadlines for filing the record and the briefs on the merits will run from the
date of this order.
PER CURIAM
In the Interest of G.B. II Page 10
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Order issued and filed November 24, 2010
In the Interest of G.B. II Page 11