in the Interest of D.S., N.S., Children , 333 S.W.3d 379 ( 2011 )

NO. 07-10-00184-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JANUARY 25, 2011
IN THE INTEREST OF D.S., N.S., CHILDREN
FROM THE 106TH DISTRICT COURT OF GARZA COUNTY;
NO. 05-11-06063-CV; HONORABLE KEVIN C. HART, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
OPINION
On October 29, 2009, appellee, the Texas Department of Family and Protective
Services, filed a petition seeking termination of the parental rights of the biological
parents of D.S. and N.S. 1
This was not the first such petition the department filed with respect to the
parents’ rights to the children. In November 2005, the department filed a petition which,
as amended, sought relief including termination. Proceedings under that petition
1
In September 2009, the mother made a joint adoption agreement with the foster
parents of D.S. and N.S. She also signed an affidavit voluntarily relinquishing her
parental rights to the children. The court’s order terminated her parental rights because
of her voluntary relinquishment. She does not appeal the order. We identify the
children by their initials and the parents as the father and mother, pursuant to Rule of
Appellate Procedure 9.8. Tex. R. App. P. 9.8.
culminated in a final order signed in September 2007, appointing the department
permanent managing conservator of the children and the parents possessory
conservators.
The October 2009 petition was heard on March 11, 2010, after which the trial
court rendered an order terminating both parents’ parental rights and continuing the
department’s role as permanent managing conservator of the children. 2 The father
appeals, arguing through four issues the evidence was insufficient to support findings
that termination was in the best interest of the children, he received ineffective
assistance of counsel at trial, his appearance by telephone at trial did not constitute
meaningful participation, and the evidence was insufficient to support findings on two
predicate grounds for termination. We will affirm.
Background
The department’s involvement with the father and mother dates to February 2005
when it received a report of “neglectful supervision” of D.S., N.S., and three other
children. According to the department, the father and mother allowed drug users in their
home and were themselves involved in drug use, testing positive for methamphetamine.
2
The court found termination in the best interest of the children. It also found
father: (1) knowingly placed or knowingly allowed the children to remain in conditions or
surroundings which endangered the physical or emotional well-being of the children; (2)
engaged in conduct or knowingly placed the children with persons who engaged in
conduct which endangered the physical or emotional well-being of the children; (3) had
his parent-child relationship terminated with respect to another child based on a finding
that father’s conduct violated Family Code § 161.001(1)(D) or (E); (4) constructively
abandoned the children; (5) knowingly engaged in criminal conduct resulting in his
conviction and confinement and inability to care for the children for not less than two
years from the date of filing the petition. Tex. Fam. Code Ann. §
161.001(1)(D),(E),(M),(N),(Q) (West Supp. 2010).
2
In August 2005, the father was arrested and charged with possession of
methamphetamine with intent to deliver. Under a plea bargain agreement, he was
sentenced to ten years confinement in prison. He remained incarcerated at the time of
trial, having four times been denied parole. According to the department, the parents
did not make progress complying with a service plan.
The department obtained temporary managing conservatorship of D.S. and N.S.
in December 2005. The children were placed with relatives of the father from
December 2005 until September 2006. They were removed, according to the
department, because of bruising from inappropriate spankings. Three placements
followed, the last with foster parents M.H. and G.H., where the children remained at the
time of trial. At the hearing, the foster mother testified generally of the wellbeing of the
children in her home. Both children were on a regimen of medications for treatment of
ADHD. The foster parents sought adoption of the children and entered an open
adoption agreement with the mother on September 21, 2009. According to a
caseworker, the children wanted to be adopted. Notes from D.S. and N.S. to the court
requesting adoption were received in evidence. If the court terminated parental rights,
the department’s expressed plan at the hearing was to transfer the case for adoption of
the children by the foster parents. Should this plan fail, the department viewed the
children as “very adoptable.” The department contacted a relative of the father
regarding possible placement for the children but, according to the caseworker, the
relative was caring for her mother and lacked the resources or time to care for two
children.
3
At the time of trial, D.S. was age eight and N.S. age six. Almost five years had
passed since their last personal contact with their father. He had been incarcerated
eleven of the preceding seventeen years. The department indicated that while
incarcerated the father wrote D.S. and N.S. six letters and submitted approximately
fifteen letters to the caseworker. The father disputed the number of letters sent the
children, believing the total about fifteen. In an order signed July 9, 2007, the parental
rights of the father to another child were terminated. As predicate grounds for the
termination, the court found the father committed acts listed in paragraphs (E), (F), (N),
and (Q) of § 161.001. According to the caseworker, while incarcerated the father was
able to perform the requirements of the service plan available in prison. Particularly, he
completed “a FAME packet and a parenting packet,” a “drug class,” and a “parenting
seminar.” The caseworker testified the father did not demonstrate a stable work history
or provide stable family housing. The father testified he expected to be paroled to the
home of his mother in Lubbock in November 2010. He added that his choice of two job
prospects awaited. According to the father, his mother is “mentally disabled” and
unable to care for the children. Also her home is not large enough for the children. The
father explained he needs time, “two or three months,” to begin work and find a home.
He acknowledged a time of adjustment would be required for him to reunite with the
children.
Analysis
Sufficiency of the Evidence Supporting Best Interest Finding
4
Through his fourth issue, the father challenges the legal and factual sufficiency of
the evidence supporting the trial court’s finding that termination of the parent-child
relationship was in the best interest of the children.
When reviewing factual findings required to be made by clear and convincing
evidence, we apply a standard of review that reflects this burden of proof. In re S.M.L.,
171 S.W.3d 472, 476 (Tex.App.--Houston [14th Dist.] 2005, no pet.). A legal sufficiency
review requires we consider all of the evidence in the light most favorable to the finding
to determine whether a reasonable fact finder could have formed a firm belief or
conviction that the finding was true. Id., (citing In re J.F.C., 96 S.W.3d at 266). In doing
so, we assume the fact finder resolved disputed facts in favor of the finding if a
reasonable fact finder could do so, and we disregard all evidence that a reasonable fact
finder could have disbelieved or found to have been incredible. Id. However, because
of the heightened standard, we must also be mindful of any undisputed evidence
contrary to the finding and consider that evidence in our analysis. In re J.F.C., 96
S.W.3d at 266 (“Disregarding undisputed facts that do not support the finding could
skew the analysis of whether there is clear and convincing evidence”).
A factual sufficiency review, in a proceeding to terminate the parent-child
relationship, requires consideration of the entire record to determine whether a
factfinder could reasonably form a firm belief or conviction that the finding was true. In
re C.H., 89 S.W.3d 17, 28 (Tex. 2002). “‘If, in light of the entire record, the disputed
evidence that a reasonable factfinder could not credit in favor of the finding is so
significant that a factfinder could not reasonably form a firm belief or conviction in the
5
truth of its finding, then the evidence is factually insufficient.’” In re H.R.M., 209 S.W.3d
105, 108 (Tex. 2006) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). There is a
strong presumption that keeping a child with a parent is in the best interest of the child.
In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). It is also presumed that prompt and
permanent placement of the child in a safe environment is in the best interest of the
child. Tex. Fam. Code Ann. § 263.307(a) (West 2008).
The Supreme Court of Texas has identified factors for consideration by the trier
of fact in determining whether termination is in the best interest of a child, including: 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 to promote the best interest of the child; the plans for the child by these
individuals or by the agency seeking custody; the stability of the home or proposed
placement; the acts or omissions of the parent which may indicate that the existing
parent-child relationship is not proper; and any excuse for the acts or omissions of the
parent. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). However, these
considerations are not exhaustive nor is proof of each a condition precedent to
termination of the parent-child relationship. In re C.H., 89 S.W.3d at 27. The absence of
evidence of some of the Holley considerations does not preclude the factfinder from
reasonably forming a strong conviction or belief that termination is in the child’s best
interest, particularly in the face of undisputed evidence that the parental relationship
endangered the safety of the child. Id. The best interest analysis evaluates the best
6
interest of the child, not the parent. In re S.A.P., 169 S.W.3d 685, 707 (Tex.App.--Waco
2005, no pet.).
The evidence supporting the statutory grounds for termination may also be used
to support a finding that the best interest of the children warrants termination of the
parent-child relationship. In re C.H., 89 S.W.3d at 28; In re P.E.W., 105 S.W.3d 771,
779 (Tex.App.--Amarillo 2003, no pet.). And a best-interest analysis may consider
circumstantial evidence, subjective factors, and the totality of the evidence as well as
the direct evidence. In re S.H.A., 728 S.W.2d 73, 86-87 (Tex.App.--Dallas 1987, writ
ref’d n.r.e.). A trier of fact may measure a parent’s future conduct by his or her past
conduct and determine that it is in the child’s best interest to terminate parental rights.
In re D.L.N., 958 S.W.2d 934, 941 (Tex.App.--Waco 1997, pet. denied), overruled on
other grounds by In re C.H., 89 S.W.3d at 26.
The department’s evidence showed the father had not provided the children with
a stable home environment. Indeed, at the time of the March 2010 final hearing, he had
been incarcerated eleven of the previous seventeen years. He was continuously jailed
or in prison, for methamphetamine possession, since 2005. And D.S. and N.S. had not
seen him since his arrest in 2005. The mother’s parental rights were terminated. The
father’s parental rights to another child were terminated in 2007 on multiple predicate
grounds. He anticipated release on parole or a release date before completion of his
ten-year sentence, but he thus far was denied parole. The only living arrangement for
the father on release was his mother’s home. But her disability and the size of her
house meant the children would remain in placement, even after the father’s release,
7
until he was able to provide suitable quarters. He had no other family placement
options. While in prison, the father wrote the children and completed the portions of the
service plan performable in prison. Since 2005 the children occupied multiple
placements. They were removed from the first placement after receiving punishment
that produced bruises. At the time of trial, D.S. and N.S. had lived two years in the
home of their foster parents. The children performed satisfactorily in school but
required medications for treatment of ADHD. The foster parents made an open
adoption agreement with the mother and sought adoption if the father’s parental rights
were terminated. The children wished to be adopted.
Considering all the evidence in relation to the best interest factors in the light
most favorable to the court’s finding, we conclude a reasonable trier of fact could have
formed a firm belief or conviction that termination was in the best interest of D.S. and
N.S. Moreover, viewing all the evidence in a neutral light, we conclude that the disputed
and undisputed evidence favoring and disfavoring the finding permits a reasonable fact-
finder to form a firm belief or conviction that termination was in the best interest of D.S.
and N.S. Hence, the evidence supporting the court’s finding that termination of the
father’s parental rights was in the best interest of D.S. and N.S. is legally and factually
sufficient. See Holley, 544 S.W.2d 367; In re S.M.L.D., 150 S.W.3d 754, 756 (Tex.App.-
-Amarillo 2004, no pet.). We overrule his fourth issue.
Ineffective Assistance of Trial Counsel
By his first issue, the father argues he received ineffective assistance of counsel
at trial. As noted, in 2005 the department initiated a suit affecting the father’s parent-
8
child relationship with D.S. and N.S. In an amended petition filed March 8, 2007, the
department, among other things, sought termination of the parent-child relationship.
The pleading alleged such a result was in the best interest of the children and supported
the allegation for termination with four predicate grounds under § 161.001(1). The suit
resulted in an order signed September 15, 2007. The father’s parental rights to the
children were not terminated; rather, the order appointed the department permanent
managing conservator of the children and the father possessory conservator.
According to the father, his counsel at the March 2010 hearing should have
interposed res judicata as a bar to litigating issues tried in the April 2007 termination
proceeding. Because trial counsel did not raise the defense, and even elicited
testimony of matters predating April 27, 2007, his representation was ineffective, the
father argues.
The Family Code requires appointment of counsel for representation of an
indigent parent who opposes the termination of his parental rights. Tex. Fam. Code
Ann. § 107.013(a)(1) (West 2008). The standard for reviewing the effectiveness of
appointed counsel’s representation is that set forth by the United States Supreme Court
in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See
In re M.S., 115 S.W.3d 534, 545 (Tex. 2003); In re J.O.A., 262 S.W.3d 7, 18 (Tex.App.--
Amarillo 2008), aff’d as modified and remanded, 283 S.W.3d 336 (Tex. 2009). The
Strickland standard requires the complaining party to establish: (1) counsel’s
performance was deficient, and (2) the deficient performance prejudiced the
complaining party. Strickland, 466 U.S. at 687; In re M.S., 115 S.W.3d at 545; In re
9
J.O.A., 262 S.W.3d at 18. An attorney’s performance is deficient if it falls below an
objective standard of reasonableness. Strickland, 466 U.S. at 688. Deficient
performance is prejudicial when, but for the attorney’s unprofessional conduct, there is a
reasonable probability that the outcome of the proceeding would have been different.
Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in
the outcome. Id.
The provisions of Family Code § 161.004 bear on the father’s contention. That
section provides:
(a) The court may terminate the parent-child relationship after rendition of
an order that previously denied termination of the parent-child relationship
if:
(1) the petition under this section is filed after the date the order
denying termination was rendered;
(2) the circumstances of the child, parent, sole managing
conservator, possessory conservator, or other party affected by the
order denying termination have materially and substantially
changed since the date that the order was rendered;
(3) the parent committed an act listed under Section 161.001 before
the date the order denying termination was rendered; and
(4) termination is in the best interest of the child.
(b) At a hearing under this section, the court may consider evidence
presented at a previous hearing in a suit for termination of the parent-child
relationship of the parent with respect to the same child.
Tex. Fam. Code Ann. § 161.004(a),(b) (West 2008).
Here, § 161.004 has application because: (1) the department filed its live petition
for termination of the parent-child relationship on October 29, 2009, a date after
10
rendition of the order denying termination; (2) the circumstances of D.S. and N.S. and
the mother materially and substantially changed on September 21, 2009, when the
mother signed an open adoption agreement and an affidavit voluntarily relinquishing
parental rights to D.S. and N.S.; (3) on July 9, 2007, the parent-child relationship of the
father and another child was terminated based on a finding that his conduct violated §
161.001(1)(E); and, (4) as noted above, the evidence supported a finding termination
was in the best interest of D.S. and N.S.
Section 161.004(b) allowed the trial court to consider evidence at the second
hearing presented in favor of termination at the previous hearing. See In re M.F., No.
11-08-0276-CV, 2010 Tex. App. Lexis 3676, at *4 (Tex.App.--Eastland May 13, 2010,
no pet.) (mem. op.) (reasoning despite claim of res judicata § 161.004 permits trial court
to consider evidence of conduct preceding previous order denying termination). Thus,
counsel for the father was not required to challenge the admissibility of evidence at the
2010 hearing on the ground it existed at the time of the 2007 hearing. With the
authorization granted by § 161.004(b), such an objection would have lacked merit.
Additionally, the father does not demonstrate how his counsel rendered
ineffective assistance by adducing evidence of events occurring before April 27, 2007.
In light of the function of § 161.004, something beyond failure to present a res judicata
defense is necessary. Otherwise, we presume counsel’s decision to present the
evidence was reasonable. See In re H.R.M., 209 S.W.3d 105, 111 (Tex. 2006) (for
ineffective assistance determination, court indulges in strong presumption of
reasonableness including possible strategic reason).
11
We conclude the record before us does not establish the performance of the
father’s trial counsel was deficient. His first issue is overruled.
Meaningful Participation of the Father at Trial
Before the termination hearing, the trial court denied the father’s request for a
bench warrant authorizing his live appearance at the hearing. He was, however,
allowed to appear by telephone and was represented at the hearing by appointed
counsel.
Through his statement of appellate points filed in the trial court and his second
issue on appeal, the father argues the trial court reversibly erred by denying his request
for a bench warrant and the opportunity to appear live at trial. But this is not the issue
the father argues in his brief. Rather, he complains his telephonic appearance was not
meaningful because of malfunctioning telephone equipment, the occasional loss of the
telephone connection, and interruptions of the proceeding as the trial court verified the
father’s presence on the telephone line. These facts, the father argues without citation,
mean he was denied meaningful participation in the hearing.
The father’s presentation of his second issue is problematic. First, preservation
of error concerning meaningful participation by telephone required the father to make a
timely objection specifying the grounds for the objection at the earliest opportunity and
obtain an adverse ruling from the trial court. Tex. R. App. P. 33.1(a)(1). Moreover, we
may not consider an issue that was not specifically presented to the trial court in a
timely-filed statement of points. Tex. Fam. Code Ann. § 263.405(i) (West 2008). While
the record documents random problems with the telephone equipment or the quality of
12
the call, it does not contain a corresponding complaint by the father. And he did not
identify this issue as a point for appeal in his statement of points. Second, an appellate
brief must “contain a clear and concise argument for the contentions made, with
appropriate citations to authorities and the record.” Tex. R. App. P. 38.1(i). Failure to
cite supporting authority or advance a substantive analysis waives the issue on appeal.
Sunnyside Feedyard, L.C. v. Metro. Life Ins. Co., 106 S.W.3d 169, 173 (Tex.App.--
Amarillo 2003, no pet.). The father presents no authorities or argument supporting his
complaint that the trial court erred by denying his request for a bench warrant.
But even had the father briefed any claimed error arising from the trial court’s
denial of his request for a bench warrant or preserved error concerning the quality of
telephone equipment or service, the issue would lack merit.
An inmate has no absolute right to appear in person for the trial of a civil case,
Armstrong v. Randle, 881 S.W.2d 53, 56-57 (Tex.App.--Texarkana 1994, writ denied),
but he may not be denied reasonable access to the courts. A prisoner requesting a
bench warrant must justify the need for his presence; 3 it is not the obligation of the trial
3
In In re Z.L.T., the court noted:
Texas courts of appeals have recognized a variety of factors that trial
courts should consider when deciding whether to grant an inmate’s
request for a bench warrant. These factors include the cost and
inconvenience of transporting the prisoner to the courtroom; the security
risk the prisoner presents to the court and public; whether the prisoner’s
claims are substantial; whether the matter’s resolution can reasonably be
delayed until the prisoner’s release; whether the prisoner can and will offer
admissible, noncumulative testimony that, cannot be effectively presented
by deposition, telephone, or some other means; whether the prisoner’s
presence is important in judging his demeanor and credibility; whether the
13
court to go beyond the bench warrant request and independently inquire of the
necessity of the inmate’s live appearance. In re Z.L.T., 124 S.W.3d 163, 166 (Tex.
2003). In bench warrant cases, if a court determines a pro se inmate in a civil suit may
not appear personally, it may, however, allow the inmate to appear by telephone,
affidavit, or deposition. In re D.D.J., 136 S.W.3d 305, 314 (Tex.App.--Fort Worth 2004,
no pet.). Here, not only did the father appear by telephone but he was represented by
appointed counsel. On this record, the trial court did not abuse its discretion by denying
the father’s request for a bench warrant. See In re Z.L.T., 124 S.W.3d at 165 (order
denying bench warrant reviewed for abuse of discretion).
This case was tried to the bench and the record indicates throughout the
proceeding the trial court was conscious of the father’s participation by telephone. At
times when the father said he was unable to hear, the court directed witnesses and
counsel to speak loudly. At one point during testimony the telephone connection was
lost, briefly restored, and lost again. The court substituted telephones and allowed the
witness to be re-questioned. The father testified at length on direct and cross-
examination. There is no record indication his testimony was hindered or otherwise
limited by use of a telephone. Throughout the hearing the father was freely permitted to
interrupt the proceeding if he had difficulty hearing or if a problem with the telephone
trial is to the court or a jury; and the prisoner’s probability of success on
the merits.
124 S.W.3d 163, 165-66 (Tex. 2003). In its order denying the requested bench warrant,
the trial court considered these factors as well as whether the father was represented by
counsel.
14
occurred. The court accommodated the father’s telephone-related complaints. At the
conclusion of evidence, the father made no complaint of his participation by telephone
or otherwise indicated he was unable to participate in any portion of the hearing.
“A trial court’s inherent power includes broad discretion over the conduct of its
proceedings.” State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 199 (Tex.Crim.App.
2003); see Tex. R. Evid. 611 (“[t]he court shall exercise reasonable control over the
mode and order of interrogating witnesses and presenting evidence so as to (1) make
the interrogation and presentation effective for the ascertainment of the truth, (2) avoid
needless consumption of time, and (3) protect witnesses from harassment or undue
embarrassment”). This record does not demonstrate the trial court abused its discretion
conducting the termination hearing with the father appearing by telephone. The father’s
second issue is overruled.
Sufficiency of the Evidence Supporting Certain Predicate Grounds
By his third issue, the father challenges the legal and factual sufficiency of the
evidence supporting two of the predicate grounds for termination found by the trial court.
In its written termination order, the trial court made findings supporting
termination according to paragraphs (D), (E), (M), (N), and (Q) of § 161.001(1). The
father, however, challenges the sufficiency of the evidence supporting termination under
paragraphs (D) and (E) of § 161.001(1), and raises no appellate complaint regarding the
trial court’s findings under paragraphs (M), (N), or (Q). “Only one predicate finding under
section 161.001(1) is necessary to support a judgment of termination.” In re A.V. and
J.V., 113 S.W.3d 355, 362 (Tex. 2003). If multiple predicate grounds are found by the
15
trial court, we will affirm based on any one ground because only one is necessary for
termination of parental rights. In re S.N., 272 S.W.3d 45, 49 (Tex.App.--Waco 2008, no
pet.). We are bound by the unchallenged findings supporting termination under
paragraphs (M), (N), and (Q). 4 See Perez v. Texas Dep’t of Protective & Regulatory
Servs., 148 S.W.3d 427, 434 (Tex.App.--El Paso 2004, no pet.); In re L.M., 104 S.W.3d
642, 647 (Tex.App.--Houston [1st Dist.] 2003, no pet.). See also In re A.C., No. 07-07-
0354-CV, 2008 Tex. App. Lexis 2718, at *2 (Tex.App.--Amarillo April 16, 2008, no pet.)
(mem. op.). We therefore need not address the father’s challenges of the sufficiency of
the evidence supporting termination under paragraphs (D) and (E).
Additionally, the evidence at trial included an order terminating the parent-child
relationship of the father and another child under § 161.001(1)(E). This fact also is a
predicate ground for termination, § 161.001(1)(M), and the trial court included such a
finding in its order. The father suggests no basis for challenge of this finding on appeal
and we see no meritorious basis in the record. Thus, regardless of the scope of the
father’s sufficiency complaint, at least one predicate ground supports termination of the
parent-child relationship between the father and D.S. and N.S. We overrule his third
issue.
4
Flowers v. Texas Dep’t of Human Resources, Tarrant County Welfare Unit, 629
S.W.2d 891, 893 (Tex.App.--Fort Worth 1982, no writ).
16
Conclusion
Having overruled the father’s four issues on appeal, we affirm the judgment of
the trial court.
James T. Campbell
Justice
17