in the Interest of A.I.T-A. and D.C.T-A. ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00164-CV
IN THE INTEREST OF A.I.T-A. AND
D.C.T-A.
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FROM THE 233RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellants C.A-T. and S.T. (Mother and Father respectively; collectively,
the parents) appeal from the trial court’s order terminating their parental
relationship with A.I.T-A. and D.C.T-A. (Daughter and Son respectively;
collectively, the children) and naming the paternal grandmother (Grandmother)
as sole managing conservator (SMC) and the maternal grandmother (Grandma)
as possessory conservator (PC). In six issues, the parents challenge the legal
and factual sufficiency of the evidence supporting the trial court’s best interest
1
See Tex. R. App. 47.4.
finding and the trial court’s findings on the termination grounds of dangerous
environment, failure to support, and use of a controlled substance; alternatively
challenge the legal and factual sufficiency of the evidence supporting the
appointment of Grandmother as SMC and Grandma as PC; and contend that the
trial court abused its discretion by awarding $30,000 in attorney’s fees from the
parents to Grandmother’s trial counsel. Because we hold that the evidence is
legally and factually sufficient to support termination and that the trial court’s
award of attorney’s fees to Grandmother’s trial counsel and against the parents
was not an abuse of discretion, we affirm the trial court’s judgment.
Background Facts
In April 2009, Grandmother and her husband (Grandfather; collectively
Grandparents) filed suit for conservatorship and child support, and Grandma
intervened for possession and access. According to Grandmother’s affidavit in
support of Grandparents’ original petition for joint managing conservatorship,
when Mother was pregnant with Daughter, who was born in June 2006, Father
held a gun to Mother’s stomach and threatened to kill her. In late March 2009,
Grandmother further alleged, he held a hammer and threatened to kill Mother in
the children’s presence. In early April 2009, before Grandparents filed their
petition, the Texas Department of Family and Protective Services (TDFPS) had
removed the children from their parents because of the parents’ domestic
violence issues and crystal methamphetamine use and placed the children with
Grandparents.
2
In April 2009, Grandparents and Grandma were named temporary joint
managing conservators (JMCs), with Grandparents given the right to designate
the children’s primary residence. Grandma was awarded possession of the
children according to the standard possession order, and the parents were
awarded separate, limited weekly visitation supervised by their respective
mothers. The parents were each ordered to pay Grandparents $50 monthly in
child support.
In September 2011, Grandma moved for drug screening of all adult parties
involved—Grandparents, Grandma, and the parents—and alleged that Father
had moved in with Grandparents and was still “abusing illegal substances along
with certain members of his family.” Also in September 2011, Grandma filed a
“motion to clarify agreed temporary orders,” in which she requested that the
parents be ordered to immediately undergo hair follicle testing and to submit to
future random hair follicle testing. In November 2011, pursuant to Grandparents’
and Grandma’s agreement, the trial court ordered drug testing of Grandparents.
Both those drug tests came back positive for hydrocodone, for which
Grandmother, but not Grandfather, had a prescription. The trial court later found
that Grandfather had no biological relationship with the children. Grandfather
nonsuited his claims.
On May 24, 2012, Grandmother filed an original petition to terminate the
parent-child relationship between the children and their parents. Grandmother
sought to be continued as the children’s JMC with the exclusive right to
3
determine their primary residence and also pled for attorney’s fees, expenses,
and costs from Grandma and the parents. On June 13, 2012, Mother filed her
pro se answer opposing the petition from jail. Grandma filed a general denial
and a request that Grandmother pay reasonable attorney’s fees, expenses, and
costs. Grandma also filed a counterpetition to terminate, seeking that she and
Grandmother be continued as JMCs but that she, not Grandmother, have the
exclusive right to designate the primary residence of the children. Grandma
again pled for Grandmother to pay reasonable attorney’s fees, expenses, and
costs. On March 6, 2013, Grandma filed her second amended petition in
intervention, seeking to be named a JMC along with Grandparents and to have
possession or access of the children under an expanded standard possession
order. She also requested that the parents be appointed “possessory
conservators with supervised visitation only if deemed in the child[ren]’s best
interest for their safety and welfare or with no visitation at the present time if
deemed appropriate considering the current circumstances.” This petition
contains no request for attorney’s fees.
After the March 18, 2013 trial, the trial court issued a letter announcing the
trial court’s rendition terminating the parent-child relationships between the
children and the parents, appointing Grandmother as SMC, appointing Grandma
as PC with the same possession schedule that she had been enjoying since
November 11, 2011 (six hours on every first, third, and fifth weekends), and
admonishing Grandma that “permitting the association of the children with
4
[Father] and/or [Mother] will be considered an objective act of bad faith and
conduct that is contrary to the best interest of the children.”
The “Final Order Granting Termination of Parental Rights and Final Order
on Suit Affecting the Parent Child Relationship” contains those rulings from the
rendition. Additionally in the decree, the trial court found that the parents
knowingly placed or knowingly allowed the children to remain in
conditions or surroundings that endanger[ed] the physical or
emotional well-being of the children. In addition they have failed to
support the children in accordance with his or her ability during a
period of one year ending within six months of the date of the filing
of the petition. Further, the parents have used a controlled
substance (as defined by chapter 481 of the Texas Health and
Safety Code) in a manner that endangered the health or safety of
the children and failed to complete a court-ordered substance abuse
treatment program[.]
The trial court also found that termination of the parent-child relationships
between the parents and children was in the children’s best interest. Finally, the
trial court additionally found that
• Grandmother’s attorney “incurred attorney’s fees and costs . . . in the
total amount of $30,000.00”;
• the attorney’s “fees are a reasonable and customary fee for an
attorney” with Grandmother’s attorney’s “experience practicing in
Tarrant County, Texas”;
• Grandmother’s attorney’s “services were for the benefit of the
children . . . and were reasonable and necessary to protect the
emotional and physical welfare of the children”; and
• Grandmother’s attorney “is entitled to recover from [Father and
Mother] jointly and severally $30,000.00 over and against the
Respondents herein, the amount shall include interest from March
21, 2013, for such fees, costs and expenses.”
5
Endangerment Evidence
In their first issue, the parents contend that the evidence is legally and
factually insufficient to support the trial court’s finding that they knowingly placed
or knowingly allowed the children to remain in conditions or surroundings that
endangered their physical or emotional well-being. 2 As we have explained in
previous cases,
Endangerment means to expose to loss or injury, to
jeopardize. The trial court may order termination of the parent-child
relationship if it finds by clear and convincing evidence that the
parent has knowingly placed or knowingly allowed the child to
remain in conditions or surroundings that endanger the physical or
emotional well-being of the child. Under subsection (D), it is
necessary to examine evidence related to the environment of the
child to determine if the environment was the source of
endangerment to the child’s physical or emotional well-being.
Conduct of a parent in the home can create an environment that
endangers the physical and emotional well-being of a child. 3
Specifically, a parent’s abusive or violent conduct may produce an endangering
environment. 4 Likewise, illegal drug use and related criminal activity will also
2
See Tex. Fam. Code Ann. § 161.001(1)(D) (West Supp. 2013).
3
In re J.W., No. 02-08-00211-CV, 2009 WL 806865, at *4 (Tex. App.—Fort
Worth Mar. 26, 2009, no pet.) (mem. op.) (citations omitted); see also In re
I.C.W., No. 02-12-00226-CV, 2013 WL 173746, at *3 (Tex. App.—Fort Worth
Jan. 17, 2013, no pet.) (mem. op.).
4
I.C.W., 2013 WL 173746, at *3; In re J.T.G., 121 S.W.3d 117, 125 (Tex.
App.—Fort Worth 2003, no pet.).
6
support a finding that the children’s surroundings endanger their physical or
emotional well-being. 5 Finally,
[a]n environment which routinely subjects a child to the probability
that she will be left alone because her parents are once again jailed,
whether because of the continued violation of probationary
conditions or because of a new offense growing out of a continued
use of illegal drugs, or because the parents are once again
committed to a rehabilitation program, endangers both the physical
and emotional well-being of a child. 6
Grandparents, Grandma, the parents, and Grandmother’s trial counsel
testified at the bench trial. Additionally, Grandmother’s trial counsel read the
parents’ deemed admissions into the record, 7 and Mother’s written answers to
the requests for admission and interrogatories were admitted with no objection. 8
Grandmother testified that she originally filed the conservatorship case in
April 2009 because
CPS came to the house to do some drug testing on [the parents],
and she admitted and he tested positive. And so when [the CPS
5
I.C.W., 2013 WL 173746, at *3; J.T.G., 121 S.W.3d at 125.
6
I.C.W., 2013 WL 173746, at *3.
7
See Tex. R. Civ. P. 198.2(c) (providing if response is untimely served,
request is considered admitted without court order), 198.3 (providing “[a] matter
admitted under this rule is conclusively established as to the party making the
admission” absent exceptions not present here); Marshall v. Vise, 767 S.W.2d
699, 700 (Tex. 1989) (holding unanswered requests for admissions are
automatically deemed admitted unless court on motion permits withdrawal or
amendment; once admitted, admission is judicial admission, whether deemed or
otherwise).
8
See Marshall, 767 S.W.2d at 700 (holding party waives right to rely on
deemed admissions by failing to object to introduction of contrary evidence).
7
investigator] was leaving, she said that—you know, I asked her,
[“]So what do we do now since they flunked their[—?”] And she
said, [“]Well, you have to go to court to get the children, to have—
you know, so they won’t go to foster care or somewhere else.[”]
Grandmother also testified that the couple’s domestic violence in their
home, about which she learned from CPS, likewise precipitated her filing suit.
Grandmother stated at trial that she believed that the “children were in physically
and emotionally harmful environments” when in the possession of Father and
Mother.
Grandmother testified that she decided to file the May 2012 termination
petition quickly “after that final [conservatorship] trial” when “[Mother and Father]
flunked that drug test and they admitted it.” The “final” trial on conservatorship,
according to Grandma, took place in November 2011. Grandmother testified that
she wanted Father’s parental rights terminated, that that decision was hard for
her, and that she loved her son but “just wish[ed] he’d ma[d]e better choices.”
Mother’s and Father’s deemed admissions state that they both used illegal
drugs, abused alcohol, and were imprisoned during the twenty-four months
preceding their answers; Grandmother’s trial counsel told the court that the
discovery had been received by the parents on September 5, 2012 and was
therefore due October 4, 2012. In Mother’s written answers to the requests for
admissions, which were admitted without objection, 9 she denied that she and
Father had abused alcohol within the last twenty-four months. She admitted in
9
See id.
8
those written answers, however, that within the last twenty-four months, she and
Father had used illegal drugs and had been incarcerated. In the answers to her
interrogatories, also admitted in evidence with no objection, Mother similarly
admitted to using methamphetamine “on[and] off [in] 2010–2011 occas[]ionally.”
On May 21, 2012, Mother informed the court that she was in jail and had
been since mid-April 2012.
In her testimony, Mother admitted that she had testified in the earlier
conservatorship trial in late 2011 that she was still using methamphetamine. She
further admitted to having been arrested in September 2011 for possession of
methamphetamine of less than one gram and again in April 2012 for a
community supervision violation related to that offense. Mother testified that she
served about four and one-half months in jail after her community supervision
violation. Mother testified that she completed intensive day treatment while she
was incarcerated and that she completed six months of aftercare treatment after
her release from jail. She admitted that she was currently wearing a drug patch
that the community supervision office checked every ten days. She denied that
her past drug test “stalls,” in which she was allegedly unable to provide a urine
sample and which were violations of her community supervision conditions, were
also drug test failures. Mother testified that she had been in drug treatment three
or four times, that she had been sober eleven months, and that she went to
Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) meetings twice a
week.
9
Mother also admitted that she and Father had had a “series of domestic
violence issues” but insisted that that was in their “past.” She remembered that
the trial court had instructed her to stay away from Father but admitted that she
had not done so. She further admitted to having gone to a bar/grill with him
about three weeks before trial, having argued with him, and having left the bar on
her own. She denied having a physical altercation with him.
Father admitted at trial that he had a history of domestic violence, that the
children were present “[a] couple times” when it occurred, and that that exposure
was not “good for” them. Father further admitted that he was at a bar with
Mother about a month before trial and that they argued. He denied that the
argument was violent. He testified that he had not had alcohol for “a few months”
and denied that either he or Mother drank alcohol at the bar.
Father also admitted that he went to jail for traffic warrants for a period of
about eight days on the same day that Mother was arrested for the possession of
methamphetamine, and he further admitted that it is difficult to “be a father to kids
when you’re in and out of jail.” Grandmother said that the parents had never
stopped using drugs during the pendency of the case.
The trial court therefore heard evidence of domestic violence in the
children’s presence, recurrent drug abuse, alcohol abuse, drug relapses, and
incarceration of both parents, at least once during the same period. The trial
court further heard that Mother had ignored the trial court’s advice to stay away
from Father, that the two had argued publicly in a bar/grill three weeks before
10
trial, and that the argument resulted in Mother leaving the bar/grill alone.
Reviewing all the evidence in the light most favorable to the finding and
judgment, 10 we hold that the trial court could have reasonably formed a firm
conviction or belief that the parents knowingly placed or knowingly allowed the
children to remain in conditions or surroundings which endangered their physical
and emotional well-being, and we therefore hold the evidence legally sufficient to
support the trial court’s endangerment finding. 11 Reviewing all the evidence with
appropriate deference to the factfinder, 12 we hold that the trial court likewise
could have reasonably formed a firm conviction or belief that Mother and Father
knowingly placed or knowingly allowed the children to remain in conditions or
surroundings which endangered their physical and emotional well-being, and we
therefore further hold the evidence factually sufficient to support the trial court’s
endangerment finding. 13 We overrule the parents’ first issue.
Best Interest Evidence
In the parents’ fourth issue, they contend that the evidence is legally and
factually insufficient to support the trial court’s finding that termination of the
10
See In re J.P.B., 180 S.W.3d 570, 573–74 (Tex. 2005).
11
See Tex. Fam. Code Ann. § 161.001(1)(D).
12
See In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006); In re C.H., 89
S.W.3d 17, 28 (Tex. 2002).
13
See Tex. Fam. Code Ann. § 161.001(1)(D).
11
parent-child relationship is in the children’s best interest. The above evidence on
endangerment is also relevant to a best interest determination. 14
In addition to the deemed findings discussed above on the endangerment
issue, the following facts were also deemed admitted against the parents
because of their failure to timely answer Grandmother’s requests for
admissions: 15
• that termination of the parents’ rights would be in the children’s best
interest;
• that either parent having primary custody of the children would not be in
their best interest;
• that removing the children from Grandmother’s primary possession would
emotionally harm them;
• that remaining with Grandmother would be in the children’s best interest;
• that Grandmother should continue to be the person determining the
children’s primary residence and making their educational and medical
decisions;
• that the children had said that they want to live with Grandmother;
• that the parents had not had unsupervised visits with the children for three
years before the discovery deadline;
• that the parents had not been to any medical or dental appointments for
the children in the last three years before the discovery deadline;
14
See C.H., 89 S.W.3d at 28.
15
While answers constituting admissions of law are not binding on a court,
a request for admission may properly ask a party to apply the law to a set of
facts. See Tex. R. Civ. P. 198.1; Duong v. Bank One, N.A., 169 S.W.3d 246, 251
(Tex. App.—Fort Worth 2005, no pet.). The parents cite no authority for their
contention that whether termination is in a child’s best interest is legal issue.
12
• that the parents had not attended any parent-teacher conferences or
visited the children’s school in the last three calendar years;
• that Grandmother had financially supported the children with no help from
the parents for at least the last twenty-four months preceding the discovery
deadline;
• that the parents had provided no financial support for the children as child
support in the last twenty-four months before the discovery deadline;
• that the parents had not provided medical insurance for the children for the
last three years before the discovery deadline; and
• that the parents had provided no clothing for the children in the twenty-four
months preceding the discovery deadline.
In her written answers to the requests for admissions that were admitted
into evidence without objection, Mother denied that
• the children had expressed a desire to live with Grandmother;
• the children’s best interest would be to remain in Grandmother’s
possession;
• it would emotionally harm the children to be removed from Grandmother’s
primary possession;
• Grandmother should remain the person responsible for determining the
children’s primary residence and making their educational and medical
decisions;
• it was not in the children’s best interest to be in the parents’ primary
custody;
• it was in the children’s best interest for the parents’ parental rights to be
terminated;
• Grandmother had provided financial support for the children without the
parents’ assistance for at least the last twenty-four months before the
discovery deadline;
• Mother had failed to pay child support for at least the last twenty-four
months before the discovery deadline; and
13
• the parents had not provided any clothing for the children within the last
twenty-four months or medical insurance for the last three years preceding
the discovery deadline.
Mother also contended in her answers to the requests for admissions that
the reasons that the parents had not attended any medical or dental
appointments or parent-teacher conferences or visited the school were that
Grandmother did not tell the parents about the appointments and that Mother
believed that the court order prohibited the parents from going to the
appointments or the school. We note that no order in the clerk’s record contains
such provisions; the orders do consistently require that all visits (excluding
telephone visits) between the parents and the children be supervised by
Grandparents, Grandma, or some “other competent designated adult.”
In her answers to the interrogatories, Mother stated that she did “not feel
[that she] need[ed] to be supervised with [her] own children” and that she did not
believe her parental “rights should be terminated at all.” She wrote, “I deserve
my kids[.] They are MY kids. And I am a good mom. I have made mistakes.
But do not anymore.” Additionally, Mother answered that she should be the
children’s JMC with the exclusive right to designate their primary residence
“[b]ecause [she is] their mother.”
Mother further answered in the interrogatories that only she and Father
should have possession of and access to the children and that Grandmother
should not be appointed SMC because Mother “fe[lt Grandmother] ha[d the]
children under p[hys]ical [and] mostly emotional harm.” Mother further opined
14
that both children needed counseling “due to their living conditions.” She
answered that she did “not know” any information about the children’s
extracurricular activities because Grandmother “d[id] not share any information
with [her] about [the] children.” Mother contended in her answers that
Grandmother denied her “any kind of contact to [the] children” and called her
“foul names.”
Mother further answered that “[w]hoever ha[d] the[ children] should provide
[health insurance] for them.”
Our review of the record yields no copy of the TDFPS service plan for the
parents in the clerk’s record or exhibits, but we note that it was alluded to in the
clerk’s record. Mother completed Community Addiction Treatment Services
(CATS) in August 2009, systematic training for effective parenting (STEP) in
August 2009, and anger management and chemical dependency group
treatment in September 2009. She also attended individual and couples
counseling with Positive Influences, which she had begun in March 2009, and
completed her psychological evaluation. Again, though, Mother admitting using
methamphetamine in 2010 and 2011 and being arrested for possessing it in
September 2011, all of which followed her completion of or participation in these
services.
While in jail during the months of June through August 2012 for her
community supervision violations regarding multiple stalled drug tests, Mother
was diagnosed with amphetamine dependence and completed the ninety-day
15
intensive outpatient portion of the intensive day treatment program offered by the
community supervision department. By February 14, 2013, she had satisfactorily
completed both the intensive day treatment program and the six months of
aftercare treatment. She testified that she had been sober eleven months and
attended NA and AA twice a week.
Father was progressing well in CATS as of September 2009, having
completed fifteen of twenty-four classes; lacked only one parenting class; and
had scheduled his psychological evaluation. He too participated in individual and
couples counseling at Positive Influences. He had also obtained employment
and applied for housing. There is no indication in the record whether Father
completed any of those services. Both parents had negative drug tests in the
period of June–September 2009.
Father completed the anger control program of Opportunities Counseling
Center on January 9, 2013.
Although each parent had been ordered to pay $50 per month of child
support to Grandmother with the first temporary order signed in April 2009, the
parents complied with that order only rarely. The child support record admitted
with no objection shows that Mother made only eight $50 payments and one $40
payment during the period of almost four years from the date child support was
imposed through the date of the March 2013 trial. Mother admitted that she last
made a payment on February 23, 2011 and that her family provided a June 8,
2012 payment to “help [her] out” while she was in jail and not working. She
16
conceded that more than a year passed between her February 23, 2011 payment
and the May 2012 filing of the petition to terminate. Mother admitted that she
had had plenty of time from her date of release from jail—August 23, 2012—to
make child support payments. Mother pointed to her incarceration, lack of job
stability, and fixed income as bases for her failure to pay child support as
ordered. She admitted that she had been a Subway employee since December
21, 2012.
Father admitted to making no child support payment until the Friday before
trial, when he paid $50, but he testified that he and his father “would help
[Grandmother] out when she needed help with the kids.”
Mother also testified,
I love my kids very much, I do, and I’ve made a lot of bad
choices, which is very clear to everybody in this courtroom, but I
don’t think it’s that clear that I do care and love my children more
than anything and I do want what’s best for them, and I’m asking this
Court to please not terminate my rights and allow me to keep
proving myself to y’all and to the Court to be able to, one day, have
a great relationship with my children and maybe possibly have them
back.
And that’s pretty much all I’ve got.
Father was originally very appreciative of Grandmother’s helping out and
taking care of the children, but by the trial, he no longer believed that she acted
in the children’s best interest. He explained, “[M]y mother told me if I got my life
straight and got a job, was sober, clean, and had a job and house and everything
for the kids, she would not mind handing me my kids back.”
17
Father further testified,
I would just like to express to the Court and everybody here, I
am a good father. I have made bad mistakes, but everybody makes
mistakes in life. I have matured highly in the past year. I have got a
job. . . . I’ve just matured a lot. . . . I’m going to classes, anger
management classes, BIP classes, all types of maturing stuff for
myself, for the best interest of my kids, because I do want my
children back one day and I want to be there to provide for my kids
for the rest of their life, and I just . . . think [Grandmother] and even
[Grandfather] . . . know me and they know I love my kids very much
and they know my kids love me very much. And I’ve done what my
mother has actually asked me before to do, which is get a job, be
clean, and live right, and I’ve done that . . . .
That’s all I have.
Grandmother testified that the children were doing well in her home.
Daughter was making “straight As” in first grade at a neighborhood elementary
school. Son had been in pre-K three hours each school day, but Grandmother
withdrew him because of a conflict with her work hours. Grandfather took care of
Son during Grandmother’s work hours. Grandfather generally worked different
hours than Grandmother. Additionally, Grandmother’s daughter also watched
Son when Grandparents were unavailable. Grandmother admitted that her
daughter might have had a drug problem years ago but denied a recent problem.
When asked about her own use of prescribed hydrocodone, Grandmother
explained that she took the medicine when her Achilles heel was inflamed.
Grandmother testified that she would take hydrocodone “out of necessity” but
was not addicted to it. Grandmother admitted that Grandfather also tested
positive for hydrocodone on the court-ordered drug test, that he did not have a
18
prescription for the medicine at the time of the test, and that he had taken her
hydrocodone without a prescription. Grandmother further testified that she had
shared her prescription medicine with Grandfather when he was in pain. She
stated that after Grandfather failed the drug test, they found out that it was not a
good idea for her to share her prescription medication with him.
Grandfather admitted that he had used hydrocodone without a prescription
while the children were living in his home and that he had nonsuited his claims
after the drug test came back positive. Grandfather also testified that he loves
the children and has “contributed [his] share” to financially supporting the
children.
Grandmother testified that she had never “really received any substantial
child support from” the parents, which had made life even more difficult.
Grandmother stated that she works “[part-time] for a lady—[doing] a lot of things
for her, [from] bookkeeping, to cleaning, to managing her apartments” and that
Grandfather manages a grocery store. She testified that they are not wealthy.
Grandmother admitted that the litigation had cost a lot and had “substantially
altered” her retirement plans.
Grandmother initially stated that the children had not visited with the
parents while in her possession but later admitted that Father had visited the
children while under her supervision. Grandmother also testified that the children
had seen their parents while in Grandma’s possession and knew information
about the court case that Grandma and Mother had told them. Grandmother had
19
not discussed the court case or trial with the children and believed that the
knowledge caused them undue stress. Grandmother testified that Daughter had
been very emotional and that Son had stated that he did not want to have to
leave his home. She testified that the children were scared of leaving their home
because they were “used to” Grandparents.
Grandmother testified that she should have the exclusive right to make
medical decisions and education decisions because she primarily had
possession of the children. Grandmother expressed concern that even if the
parents’ rights were terminated, Grandma would still allow them to visit the
children during her periods of possession, and Grandmother did not believe
those visits would be in the children’s best interest.
Grandmother further testified that she had lived at her current home for six
years and had no plans to move.
Grandmother also testified that the children recognized Grandfather and
her as their parents and called them Pawpaw and Mom respectively, even
though she had told them that she is their grandmother. Grandmother testified
that she loves the children “like they were [her] own,” that they will never
“want . . . for anything,” that she and Grandfather “just want the best for them,”
and that she believes termination of the parents’ parental rights is best for the
children.
Grandmother admitted that she had told Father “when [he] was staying
with [her] that if [he] kept [his] nose clean and stayed sober, got a job and lived
20
right, that [she] would give [him his] kids back.” Grandmother testified that she
had told both parents “[t]hat if they got their—got off of the drugs and did the right
thing, that they could have their children back,” but she stated that by the time of
trial, they had still not done so.
Grandmother also admitted that she and Grandma do not get along.
Nevertheless, Grandmother testified that she believes that it is in the children’s
best interest to have a relationship with Grandma.
Grandma testified that some of the pick-ups and drop-offs of the children
had not gone smoothly because Grandmother was argumentative, resistant, or
abrasive, and Grandma felt threatened. Grandma also stated that
[t]he children have expressed that they can only say certain
things to their grandmother because she gets mad at them and she
puts them in time-out when she gets mad at them. So they—they
feel they can only share certain things with her.
Grandma also testified that the children had told her many times that they
wanted to “go home,” meaning to her house or to their parents’ home, not
Grandmother’s. Grandma further testified that she did not think that completely
excluding the parents from the children’s lives would be in their best interest
because it would traumatize them not to ever be able to
see their parents because, yes, they do—they do love their parents
very much, and their parents love them very much, and given the
new situation, the new stake in life right now and all the
accomplishments, it is a wonderful, positive experience.
They relate well to their parents and, most certainly, their parents
have their best interest at heart.
21
On cross-examination, Grandma confirmed her statement that the parents
had the children’s best interest in their heart but stated that she did not so believe
when the parents were doing methamphetamine in front of the children or when
domestic violence between them occurred in front of the children. Grandma
testified that absent a court order prohibiting the parents from being around the
children, she would allow such visits as long as the parents were not using drugs.
The trial court heard conflicting evidence about where the children wanted
to live but heard no evidence about where either parent was living. On the other
hand, Grandmother had been in the same home for six years and had no plan to
move; the children had therefore been in the same home with her for almost four
years and could look forward to the same stable home in the future. The children
are obviously bonded with all the adult parties, but the evidence indicates that
they called Grandmother “Mom” of their own volition. There was no evidence
about any special needs, other than Mother’s contention that the children needed
counseling.
The parents’ fairly recent drug use and confinement in jail after TDFPS had
already removed their children, as well as Mother’s relapses even after three or
four stints in rehab, provide some indication of the emotional and physical danger
to the children in their parents’ care, as does the parents’ failure to take even a
token responsibility for supporting the children or to take any independent
interest in their lives during the long removal. While the evidence concerning
22
Grandfather’s use of Grandmother’s hydrocodone shows a lack of judgment,
there was no evidence that Grandparents had any addiction issues.
The parents’ own words indicate that they were not ready for the children
to be returned to them at the end of trial, and there was no evidence about the
parents’ plans for the children. Grandmother, on the other hand, discussed the
children’s schooling, Son’s care providers, how she and Grandfather provide for
the children financially, and her belief that Grandma and the children should
maintain contact, even though Grandmother and Grandma do not get along,
because that contact benefits the children.
Viewing all the evidence in the light most favorable to the finding and
judgment and considering the nonexclusive Holley factors, we hold that the trial
court could have reasonably formed a firm conviction or belief that termination of
the parental relationship between the parents and the children was in the
children’s best interest, and we therefore hold the evidence legally sufficient to
support the trial court’s best interest finding. 16 Similarly, reviewing all the
evidence with appropriate deference to the factfinder, we hold that the trial court
could have reasonably formed a firm conviction or belief that termination of the
parental relationship between the parents and the children is in the children’s
16
See Tex. Fam. Code Ann. § 161.001(2) (West Supp. 2013); J.P.B., 180
S.W.3d at 573–74; C.H., 89 S.W.3d at 27; Holley v. Adams, 544 S.W.2d 367,
371–72 (Tex. 1976).
23
best interest, and we therefore hold that the evidence is factually sufficient to
support the best interest finding. 17 We overrule the parents’ fourth issue.
Issues Not Reached
Because a best interest finding and a finding of only one ground alleged
under section 161.001(1) of the family code are sufficient to support a judgment
of termination, 18 we do not reach the parents’ second and third issues, 19 which
challenge the findings under subsections (F) and (P). 20 Because we have upheld
the trial court’s termination of the parent-child relationship, we also do not reach
the parents’ conditional fifth issue, which challenges the appointment of
Grandmother as SMC and Grandma as PC had we reversed the termination
order. 21
Attorney’s Fees
In their sixth issue, the parents contend that the trial court abused its
discretion by awarding $30,000 to Grandmother’s trial counsel and against them.
They seem to argue both sufficiency grounds and segregation grounds, stating,
17
See Tex. Fam. Code Ann. § 161.001(2); H.R.M., 209 S.W.3d at 108;
J.P.B., 180 S.W.3d at 573–74; C.H., 89 S.W.3d at 27–28; Holley, 544 S.W.2d at
371–72.
18
In re E.M.N., 221 S.W.3d 815, 821 (Tex. App.—Fort Worth 2007, no
pet.).
19
See Tex. R. App. P. 47.1.
20
See Tex. Fam. Code Ann. § 161.001(1)(F), (P) (West Supp. 2013).
21
See Tex. R. App. P. 47.1.
24
There was no testimony as to the nature of the preparation,
complexity of the case, experience of the attorney, and the
prevailing hourly rates. Much of the litigation below was between
[Grandmother] and [Grandma] over custodial violations allegedly
committed by [Grandmother] and efforts by [Grandma] to determine
drug testing. Nothing was said regarding the time preparing for the
litigation between [Grandmother and Grandma],
and concluding that “[i]t was an abuse of discretion to award all of the fees
against [the parents].” The parents, however, failed to preserve their segregation
argument in the trial court. 22 We therefore confine our analysis to their
sufficiency complaint. 23
Section 106.002 of the family code authorizes the trial court to award
“reasonable attorney’s fees and expenses” in suits affecting the parent-child
relationship (SAPCRs), including termination suits. 24 The award of attorney’s
fees in a SAPCR is within the sound discretion of the trial court. 25 Evidence must
support the award. 26 However,
[s]pecificity . . . is not required. Instead, to support a request for
reasonable attorney’s fees, testimony should be given regarding the
22
See Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 389–90 (Tex. 1997);
Hulen v. Hamilton, No. 02-06-00288-CV, 2008 WL 553812, at *8 (Tex. App.—
Fort Worth Feb. 28, 2008, no pet.) (mem. op.).
23
See Hulen, 2008 WL 553812, at *8.
24
See Tex. Fam. Code Ann. § 106.002(a) (West 2008).
25
Bruni v. Bruni, 924 S.W.2d 366, 368 (Tex. 1996); In re W.M.R., No. 02-
11-00283-CV, 2012 WL 5356275, at *14 (Tex. App.—Fort Worth Nov. 1, 2012,
no pet.) (mem. op.).
26
W.M.R., 2012 WL 5356275, at *14.
25
hours spent on the case, the nature of preparation, complexity of the
case, experience of the attorney, and the prevailing hourly rates.
The court does not need to hear evidence on each factor but can
look at the entire record, the evidence presented on
reasonableness, the amount in controversy, the common knowledge
of the participants as lawyers and judges, and the relative success of
the parties. 27
Grandmother’s trial counsel testified about attorney’s fees:
I was hired by [Grandparents] in early . . . 2009 to represent
them in this case. This case has been ongoing for a period of three
years now. In that time, we have billed approximately—or not
approximately—in the amount of $33,742.69. This case has
become obscene. It has become a waste to the people who have
actually cared for and taken care of these children. I am asking that
that dollar amount, Your Honor, be assessed against [the parents],
jointly and severally liable, and that’s what I’m requesting. I bill at
the rate of $225.00 per hour, which is a very customary rate for a
lawyer with my accomplishments in this field.
Grandma’s trial counsel briefly cross-examined Grandmother’s trial
counsel, asking only whether he believed that the fees were “both reasonable
and necessary” and eliciting an affirmative response. Neither parent chose to
cross-examine Grandmother’s trial counsel.
The trial court also admitted without objection Grandmother’s trial
counsel’s summary of attorney’s fees earned from April 1, 2009 through March
18, 2013, which showed that he billed at a rate of $200 per hour, billed 149.1
hours, and earned $29,820; that an associate also billed at a rate of $200, billed
1.5 hours, and earned $300; that the paralegals who worked on the case billed
$125 per hour, billed 17.5 hours, and earned $2,187.50; and that the total fees
27
Id. (citations and internal quotation marks omitted).
26
were $32,307.50. Out-of-pocket costs were listed at $1,435.19, and total fees
and costs were $33,742.69.
The trial court also took judicial notice of the court’s file, which revealed
that Grandmother’s trial counsel propounded discovery, filed and responded to
several pleadings, and made several court appearances. The trial court also
specifically found that
• Grandmother’s trial counsel “incurred attorney’s fees and costs . . . in the
total amount of $30,000.00”;
• the attorney’s “fees are a reasonable and customary fee for an attorney”
with Grandmother’s trial counsel’s “experience practicing in Tarrant
County, Texas”;
• Grandmother’s trial counsel’s “services were for the benefit of the
children . . . and were reasonable and necessary to protect the emotional
and physical welfare of the children”; and
• Grandmother’s attorney “is entitled to recover from [Father and Mother]
jointly and severally $30,000.00 over and against the Respondents herein,
the amount shall include interest from March 21, 2013, for such fees, costs
and expenses.”
The parents did not challenge the finding that the services were for the children’s
benefit and were reasonable and necessary to protect their welfare. Because we
hold that there is some evidence to support this finding, it is binding. 28
Thus, the record provides evidence of the complexity of the case and
evidence of Grandmother’s trial counsel’s preparation, and the trial court’s
28
See McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986);
Inimitable Grp., L.P. v. Westwood Grp. Dev. II, Ltd., 264 S.W.3d 892, 902 & n.4
(Tex. App.—Fort Worth 2008, no pet.).
27
findings reveal knowledge of Grandmother’s trial counsel’s experience and the
customary attorney’s fee rate in Tarrant County. The unchallenged finding
provides that the attorney’s fees were for the children’s benefit. Given the
evidence, we hold that the trial court did not abuse its discretion by awarding
Grandmother’s trial counsel $30,000 in attorney’s fees. We overrule the parents’
sixth issue.
Conclusion
Having overruled the parents first, fourth, and sixth issues, which are
dispositive, we affirm the trial court’s judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.
DELIVERED: November 7, 2013
28