in the Interest of E.A.F., Child , 2014 Tex. App. LEXIS 2115 ( 2014 )

Affirmed and Opinion filed February 25, 2014.
In The
Fourteenth Court of Appeals
NO. 14-13-00869-CV
IN THE INTEREST OF E.A.F., A CHILD
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Cause No. 2012-02536J
OPINION
Appellant, E.F., appeals from the decree terminating his parental rights to
the child, E.A.F., raising three issues. In his first issue, appellant asserts that the
trial court should have warned him of the dangers of self-representation. In his
second issue, appellant asserts the evidence is insufficient to support the finding
that termination of his parental rights is in the child’s best interest. Appellant asks
in his third issue that we review the trial court’s conservatorship determination if
we conclude the termination finding must be reversed. We affirm.
BACKGROUND
The Texas Department of Family and Protective Services (the Department)
filed suit on April 16, 2012, seeking protection of the child, E.A.F. The record
reflects that appellant, who was not married to the child’s mother and did not live
with her, discovered his then one-year-old daughter home alone while the mother
was at work. Upon arriving at the mother’s apartment, he heard the child crying
and broke down the door. Appellant notified the Department and the police, and he
left the scene with the child.
The evidence in the record reflects that the Department’s investigation of the
father’s background revealed that appellant’s parental rights to another child had
been terminated in Bell County after the child was severely injured. That child’s
mother was later convicted for injuring the child. Appellant also has a conviction
for assault of a military police officer at Fort Hood. Based on this history, the
Department was appointed temporary managing conservator of E.A.F., and the
child was placed in the home of her paternal aunt (appellant’s sister), where
appellant also resided.
There is evidence in the record of an incident in which appellant threatened
his sister in whose care the child was placed, and the police were summoned.
Appellant’s visits with the child at the aunt’s home were suspended. In January of
2013, the Department recommended appellant have visitation with the child at the
CPS office, but the record reflects appellant only had one visit at the office. The
Department’s case worker testified that appellant arrived 45 minutes late for his
scheduled visit with the child and became upset, hostile, and confrontational when
he was told the visit could not be extended. After problems arose with the aunt
being unavailable for home visits by the ad litem, the child was placed in a foster
home.
2
On April 11, 2013 the case was called to trial. Prior to calling its first
witness, counsel for the Department asked appellant’s court-appointed counsel, Pat
Shelton, if he still represented appellant. Shelton responded, “my client has
released me.” Shelton explained that he was ready to proceed with trial and stated
“It seems like there would be a full trial for the father that’s required.” He
requested some clarification from the trial court before the trial started, however.
Specifically, the following colloquy occurred:
Mr. Shelton: But I need to know whether — I’d be happy to be here
but — it’s got the Court that assigned me. I got my client, who on the
telephone has released me. I’m kind of in a little limbo right now.
The Court: What do you want to do?
Mr. Shelton: I’m ready to proceed.
The Court: Okay.
Mr. Shelton: I think he has a legitimate case.
The Court: Okay. So you don’t want a lawyer?
[Appellant]: I want to represent myself.
The Court: Okay. Well you can do that. All right. You’re released.
Mr. Shelton: Thank you.
The Court: All right. I guess we’re ready.
The record does not reflect that Shelton filed a motion to withdraw as counsel or
that the trial court signed an order granting withdrawal.
The Department then called its first witness, and appellant represented
himself at trial. The trial court signed an interlocutory decree terminating
appellant’s parental rights on June 18, 2013, and continued the trial concerning the
mother until August 15, 2013.1 On September 10, 2013, the trial court signed a
1
Appellant filed a pro se notice of appeal on July 3, 2013, from the interlocutory termination
order. After notice to the parties, this court dismissed the attempted appeal. See In re E.A.F., No.
14-13-00618-CV, 2013 WL 4945751 (Tex. App.—Houston [14th Dist.] Sept. 12, 2013, no pet.)
(mem. op.).
3
final decree terminating the mother’s parental rights, making the interlocutory
order signed June 18, 2013, final. Appellant’s counsel then filed a timely notice of
appeal from the final termination decree.2
TERMINATION OF PARENTAL RIGHTS
The involuntary termination of parental rights is a serious matter implicating
fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985);
In re D.R.A., 374 S.W.3d 528, 531 (Tex. App.—Houston [14th Dist.] 2012, no
pet.). But while parental rights are of constitutional magnitude, they are not
absolute. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). “Just as it is imperative for
courts to recognize the constitutional underpinnings of the parent-child
relationship, it is also essential that emotional and physical interests of the child
not be sacrificed merely to preserve that right.” Id.
Due to the severity and permanency of the termination of parental rights, the
burden of proof is heightened to the clear and convincing evidence standard. See
Tex. Fam. Code § 161.001; In re J.F.C., 96 S.W.3d 256, 265–66 (Tex. 2002).
“Clear and convincing evidence” means “the measure or degree of proof that 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.” Tex. Fam. Code § 101.007; accord In re
J.F.C., 96 S.W.3d at 264. This heightened burden of proof results in a heightened
standard of review. In re C.M.C., 273 S.W.3d 862, 873 (Tex. App.—Houston [14th
Dist.] 2008, no pet.).
FARETTA WARNINGS
Appellant argues in his first issue that the trial court’s judgment terminating
his parental rights should be reversed because he was allowed to represent himself
2
The mother is not a party to this appeal.
4
without being provided warnings about the dangers of self-representation.
Appellant asks that we apply the due process protections announced in Faretta v.
California, 422 U.S. 806, 95 S. Ct. 2525 (1975), a criminal case, to a parent facing
the involuntary termination of his parental rights.
In Faretta, the United States Supreme Court recognized that a criminal
defendant has the right to the assistance of counsel under the Sixth Amendment, as
well as the right to waive counsel and represent himself. Id. at 807, 95 S.Ct. at
2527. However, once the defendant asserts his right to self-representation, a trial
court judge must ascertain that he chooses to waive the right to counsel knowingly
and intelligently, and must warn the defendant of the dangers and disadvantages
accompanying such a waiver. Id. at 835–36, 95 S.Ct. at 2541.
In arguing for an extension of the requirement for Faretta warnings to this
civil termination proceeding, appellant has analogized this case to a criminal case.
Appellant notes that because of the importance of a parent’s interest in his parental
rights, courts have sometimes found guidance from criminal cases in termination
proceedings. See, e.g., In re M.S., 115 S.W.3d 435, 544-45 (Tex. 2003) (holding
that the statutory right to counsel in government termination proceedings
“embodies the right to effective counsel” and applying the standard for
determining ineffective assistance used in criminal cases).
The United States Supreme Court has recognized that, in contrast to criminal
cases, there is no constitutional right to appointed counsel in all termination
proceedings. See Lassiter v. Dep’t of Social Servs., 452 U.S. 18, 27–32, 101 S. Ct.
2153, 2159–62 (1981). The Court held that appointed counsel was not routinely
required to assure a fair adjudication; instead, a case-by-case determination of the
need for counsel would suffice. 452 U.S. at 32, 101 S.Ct. at 2162.
Texas has adopted a statutory scheme for providing counsel to assist
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indigent parents, mandating the appointment of an attorney ad litem for an indigent
parent who opposes the termination of the parent-child relationship in a suit filed
by a governmental entity. Tex. Fam. Code § 107.013(a)(1). Specifically, the
Family Code provides that the trial court “shall appoint an attorney ad litem to
represent the interests of: (1) an indigent parent of the child who responds in
opposition to the termination . . . .” Tex. Fam. Code Ann. § 107.013(a)(1)
(emphasis supplied). The appointment of an attorney ad litem is required whether
or not the indigent parent requests an attorney. See In re J.M., 361 S.W.3d 734,
739 (Tex. App.—Amarillo 2012, no pet.) (holding the trial court committed
reversible error by proceeding without appointing an attorney ad litem, even
though appellant did not request an attorney).
The Texas Family Code defines an “attorney ad litem” as “an attorney who
provides legal services to a person, including a child, and who owes to the person
the duties of undivided loyalty, confidentiality, and competent representation.”
Tex. Fam. Code § 107.001(2). The Family Code sets out the powers and duties of
an attorney ad litem appointed to represent the interests of a parent in a termination
proceeding brought by a government entity. See Tex. Fam. Code § 107.0131.
Among these duties, an ad litem is required to “ensure competent representation at
hearings, mediations, pretrial matters, and the trial on the merits” and to “attend all
legal proceedings in the suit.” Id. at (a)(1) (C), (G). An attorney ad litem appointed
for a parent under Chapter 107 who fails to perform the duties required by Section
107.0131 is subject to disciplinary action. See Tex. Fam. Code § 107.0133.
The Family Code provides that the attorney ad litem’s duties continue until
the termination proceedings are dismissed or finally concluded unless the attorney
is relieved or replaced “after a finding of good cause is rendered by the court on
the record.” Tex. Fam. Code § 107.016(2). Section 107.016(2) provides:
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(2) an attorney appointed under this subchapter to serve as an attorney
ad litem for a parent or an alleged father continues to serve in that
capacity until the earliest of:
(A) the date the suit affecting the parent-child relationship is
dismissed;
(B) the date all appeals in relation to any final order terminating
parental rights are exhausted or waived; or
(C) the date the attorney is relieved of the attorney’s duties or replaced
by another attorney after a finding of good cause is rendered by the
court on the record.
Tex. Fam. Code § 107.016(2).
In considering appellant’s argument that we adopt a requirement for Faretta
warnings in this case, we first note that the Sixth Amendment, on which Faretta is
based, provides for the right to assistance of counsel in “all criminal prosecutions,”
and it does not apply in parental termination proceedings. See U.S. Const. amend
VI. The Eighth Court of Appeals has rejected a terminated father’s complaint that
he was not allowed to represent himself. See In re A.H.L., III, 214 S.W.3d 45, 52
(Tex. App.—El Paso 2006, pet. denied) (finding due process does not require the
right of self-representation in a termination of parental rights case). The El Paso
Court upheld the trial court, which construed the mandatory nature of section
107.013 as prohibiting the father from proceeding without an appointed attorney ad
litem. Id. at 51–52 (citing Tex. Fam. Code Ann. § 107.013(a)(1)).
Appellant asks that we instead follow the Court of Appeals for the First
District, which held that Faretta warnings were required in a case concerning self-
representation in a private termination proceeding. See In re C.L.S., 403 S.W.3d
15, 21 (Tex. App.—Houston [1st Dist.] 2012, pet. filed). Because C.L.S. concerned
a private termination proceeding, the mandatory appointment of an ad litem
attorney was not at issue. See Tex. Fam. Code Ann. § 107.013(a)(1) (stating ad
litem appointment is required in suits filed by a governmental entity in which an
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indigent parent opposes termination). The father in C.L.S. was not precluded from
dismissing his counsel because an appointed ad litem was not mandated.
Therefore, the holding in C.L.S. that Faretta warnings should have been provided
is not applicable in this case.
In this case, the trial court signed an order appointing Pat Shelton “to serve
as attorney ad litem and to represent the interests of [appellant]” in the termination
proceedings, as is mandated by statute.3 See Tex. Fam. Code Ann. § 107.013(a)(1)
(stating attorney ad litem appointment is required in suits filed by a governmental
entity in which an indigent parent opposes termination); see also In re C.D.S., 172
S.W.3d 179, 186 (Tex. App.—Fort Worth 2005, no pet.) (holding the trial court
was required to appoint an attorney ad litem to represent indigent parent in
government-initiated termination proceeding, and the failure to do so constituted
reversible error). Here, there was no finding of good cause rendered by the court
on the record and the court did not relieve the attorney of his duties pursuant to
Texas Family Code Section 107.016. Moreover, here, the Code did not authorize
appellant to release the ad litem. Accordingly, the ad litem was not properly
relieved of his duties.
In sum, the Texas Family Code provides that the trial court has a mandatory
statutory duty to appoint an attorney ad litem for an indigent parent in an
involuntary termination proceeding brought by a government agency. The plain
language of the Code deprives the trial court of the authority to permit the
withdrawal of such attorney ad litem absent a finding of good cause — a finding
3
The record reflects that appellant was initially represented by retained counsel. On October 2,
2012, the trial court granted retained counsel’s motion for leave to withdraw and signed an order
appointing Shelton. While our record does not contain an affidavit of indigence, the Department
has not disputed that appellant was determined to be indigent, as alleged in appellant’s brief. See
Tex. R. App. P. 38.1(g) (“In a civil case, the court will accept as true the facts stated unless
another party contradicts them.”). We also note that appellant is represented by appointed
counsel on appeal.
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neither made nor requested in this case. As such, the court-appointed attorney ad
litem’s duties to appellant should have continued. Stated differently, section
107.016 did not allow appellant to release a court-appointed attorney ad litem, so
he cannot show he was entitled to Faretta warnings regarding the consequences of
such a release.
Appellant has not complained that the trial court erred in permitting the
attorney ad litem to withdraw. Nor has he complained that the trial court should
have appointed a new ad litem attorney. Instead, he asked in his brief, “Did the
trial court err by failing to warn appellant of the disadvantages and dangers of
waiving his right to counsel and the assistance of counsel as required by Faretta v.
California[?]” For the reasons given above, we conclude that Faretta warnings are
not implicated in this case.
Because appellant has not complained in his brief that the trial court erred in
permitting the court- appointed attorney ad litem to withdraw, we may not reverse
the trial court’s judgment on that basis. The Supreme Court of Texas has
repeatedly instructed that “the courts of appeals may not reverse the judgment of a
trial court for a reason not raised in a point of error.” Brown v. Traylor, 210
S.W.3d 648, 657 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (quoting Walling
v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993)). Under Rule 38.1 of the Texas Rules
of Appellate Procedure, an appellant must assign error in his brief to complain of
that error. See Tex. R. App. P. 38.1(f) (“The brief must state concisely all issues or
points presented for review.”).4 We are to address only those issues that have been
4
Issues are construed to include “every subsidiary question that is fairly included.” Tex. R. App.
P. 38.1(f); see, e.g, Weingarten Realty Investors v. Harris Cnty. Appraisal Dist., 93 S.W.3d 280,
284 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (finding issue challenging exclusion of
expert testimony included argument about the reliability of an expert’s foundational data). We
construe a complaint that counsel was improperly dismissed in violation of a statutory
requirement for an ad litem attorney (which appellant has not made) to be a separate and distinct
error from the denial of warnings about self-representation.
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raised and are necessary to a final disposition of the appeal. See Tex. R. App. P.
47.1. “It is not the proper function of this Court to create arguments for an
appellant. We are restricted to addressing the arguments actually raised, not those
that might have been raised.” Feagins v. Tyler Lincoln-Mercury, Inc., 277 S.W.3d
450, 455 (Tex. App.—Texarkana 2009, no pet.) (quoting Henry S. Miller Mgmt.
Corp. v. Houston State Assocs., 792 S.W.2d 128, 134 (Tex. App.—Houston [1st
Dist.] 1990, writ denied)). We are thus prohibited from altering even an erroneous
judgment in a civil case without a challenge to the error on appeal. Milton M.
Cooke Co. v. First Bank & Trust, 290 S.W.3d 297, 303 (Tex. App.—Houston [1st
Dist.] 2009, no pet.). We therefore overrule appellant’s first issue.
BEST INTEREST
In his second issue, appellant challenges the sufficiency of the evidence
supporting the trial court’s finding that termination of appellant’s parental rights is
in the child’s best interest. There is a strong presumption that the best interest of a
child is served by keeping the child with his or her natural parent. In re R.R., 209
S.W.3d 112, 116 (Tex. 2006); In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—
Houston [14th Dist.] 2012, no pet.). Prompt and permanent placement of the child
in a safe environment is also presumed to be in the child’s best interest. Tex. Fam.
Code § 263.307(a).
In a proceeding to terminate the parent-child relationship brought under
section 161.001 of the Texas Family Code, the petitioner must establish, by clear
and convincing evidence, one or more acts or omissions enumerated under
subsection (1) of section 161.001 and that termination is in the best interest of the
child under subsection (2). Tex. Fam. Code § 161.001; In re J.L., 163 S.W.3d 79,
84 (Tex. 2005). Appellant concedes in his brief that the evidence is legally and
factually sufficient to support the trial court’s termination finding under subsection
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(M), based on the prior termination for endangering conduct. Only one predicate
finding is required. Therefore, appellant did not challenge the sufficiency of the
evidence supporting the other statutory predicate finding supporting termination,
subsection (O). See Tex. Fam. Code § 161.001(1)(M), (O).
The unchallenged predicate findings are binding. See In re K.L.G., No. 14-
09-00403-CV, 2009 WL 3295018 (Tex. App.—Houston [14th Dist.] 2009, no pet.)
(because the predicate and best interest findings were not challenged, they were
binding on the appellate court); see also IKB Indus. (Nigeria) Ltd. v. Pro–Line
Corp., 938 S.W.2d 440, 445 (Tex. 1997). These unchallenged predicate findings
can therefore support the best interest finding. See In re C.H., 89 S.W.3d 17, 28
(Tex. 2002) (holding that same evidence may be probative of both section
161.001(1) predicate grounds and best interest); see also In re E.C.R., 402 S.W.3d
239, 249 (Tex. 2013) (“Many of the reasons supporting termination under
subsection O also support the trial court’s best interest finding.”).
The following factors, among others, should be considered in evaluating the
parent’s willingness and ability to provide the child with a safe environment: the
child’s age and physical and mental vulnerabilities; the willingness and ability of
the child’s family to seek out, accept, and complete counseling services and to
cooperate with and facilitate an appropriate agency’s close supervision; the
willingness and ability of the child’s family to effect positive environmental and
personal changes within a reasonable period of time; and whether the child’s
family demonstrates adequate parenting skills, including providing the child with
minimally adequate health and nutritional care, a safe physical home environment,
and an understanding of the child’s needs and capabilities. Tex. Fam. Code §
263.307(b); R.R., 209 S.W.3d at 116.
In addition, courts may consider other nonexclusive factors in reviewing the
11
sufficiency of the evidence to support the best interest finding, a court examines
several factors, including (1) the desires of the child, (2) the present and future
physical and emotional needs of the child, (3) the present and future emotional and
physical danger to the child, (4) the parental abilities of the persons seeking
custody, (5) the programs available to assist those persons seeking custody in
promoting the best interest of the child, (6) the plans for the child by the
individuals or agency seeking custody, (7) the stability of the home or proposed
placement, (8) acts or omissions of the parent which may indicate the existing
parent-child relationship is not appropriate, and (9) any excuse for the parent’s acts
or omissions. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). This list is not
exhaustive, and evidence is not required on all of the factors to support a finding
terminating a parent’s rights. Id.; In re D.R.A., 374 S.W.3d at 533.
When determining legal sufficiency, we review “all the evidence in the light
most favorable to the court’s finding to determine whether a reasonable trier of fact
could have formed a firm belief or conviction that its finding was true.” In re
J.F.C., 96 S.W.3d at 266. To give appropriate deference to the factfinder’s
conclusions, we must assume that the factfinder resolved disputed facts in favor of
its finding if a reasonable factfinder could do so. Id. We disregard all evidence that
a reasonable factfinder could have disbelieved or found to have been incredible. Id.
However, this does not mean that we must disregard all evidence that does not
support the finding. Id. 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. Id. With these considerations in mind, we review the
evidence below.
One of the statutory best-interest factors courts are to consider is whether
there is a history of abusive or assaultive conduct by the child’s family. See Tex.
12
Fam. Code § 263.307(b)(7). A reviewing court may examine a parent’s history
with other children in considering the risks or threats of a parent’s environment. In
re E.C.R., 402 S.W.3d at 248. “Part of [the] calculus includes the harm suffered or
the danger faced by other children under the parent’s care.” Id. Courts are to
consider whether a parent demonstrates adequate parenting skills, including
providing the child with “protection from repeated exposure to violence even
though the violence may not be directed at the child.” Tex. Fam. Code §
263.307(b)(12)(E).
Appellant’s parental rights to his first child were terminated on findings that
he endangered that child. The Department’s case worker acknowledged that
appellant claimed he was not the father of that child, he was not charged with
harming the child, and he had nothing more to do with the mother after she was
convicted and jailed for injuring the child. The record also reflects that despite this
prior termination, the Department initially recommended that appellant should be
named a possessory conservator with limited visitation and the requirement to pay
child support.
There was also evidence that appellant engaged in domestic violence. The
Department provided evidence that appellant had been incarcerated for domestic
violence and for an assault on a military police officer who responded to the
complaint that appellant strangled his former wife. A “parent’s past behavior is
indicative of the quality of future care that the parent is capable of providing.” In
re C.J., No. 14-07-00838-CV, 2008 WL 447687 (Tex. App.—Houston [14th Dist.]
2008, no pet.) (mem. op.). In addition, the record contains evidence that appellant
threatened physical violence to his sister who was caring for E.A.F. The
Department’s case worker also testified that appellant was not cooperative and
became upset, hostile, and confrontational when he was denied additional
13
visitation time after arriving late. The child advocate expressed her opinion that
appellant was dangerous. The record reflects that she no longer worked on the case
because she felt threatened.
Appellant called witnesses who testified favorably on his behalf. The child’s
godfather, who had known appellant since childhood, stated he never saw any
violent behavior and it seemed that appellant was a caring father. Appellant also
called his sister, who had cared for the child for over a year. She denied filing a
police report on appellant, and stated the complaint was made by her apartment
manager. She claimed she was not afraid of appellant and had no concern that he
would harm her.
It was also appropriate for the court to consider that appellant did not
comply with the court-ordered service plan for reunification with the child. See In
re E.C.R., 402 S.W.3d at p. 249 (findings under section 161.001(1)(O) can support
best interest finding); In re J.T.G., No. 14-10-00972-CV, 2012 WL 171012, *17
(Tex. App.—Houston [14th Dist.] 2012, pet. denied) (considering failure to
participate in services required for reunification in best-interest determination).
Appellant performed some of the court-ordered services, but the record reflects
that he failed to establish that he satisfied the requirements for maintaining stable
housing and employment. The trial court’s finding that appellant had failed to
comply with the court-ordered steps necessary to reunify with his child and show
he would be responsible for her needs, which is unchallenged, supports the court’s
best interest finding. See In re J.T.G., 2012 WL 171012 at *17–*18 (finding
parent’s failure to demonstrate stable housing and employment supported a finding
that parental termination was in the child’s best interest).
There is very little information in the record about the child’s current
placement. The child advocate testified that the child was healthy and doing well in
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her current placement in a foster home. The Department’s case worker also
confirmed the child’s well-being. She informed the court that the child was two
years old at time of trial. She was very healthy and in the process of potty training.
The case worker confirmed the child was doing well in a foster home, but she
acknowledged that it was not an adoptive home. The record reflects that a home
study for possible placement with a paternal grandmother was being completed.
In sum, the record contains sufficient evidence to support the best interest
finding based on appellant’s criminal history, the prior termination, evidence of
family violence, and failure to fully comply with the court-ordered service plan.
After considering the relevant factors under the appropriate standards of review,
we hold that the evidence presented at trial and summarized above is legally
sufficient to reasonably establish a firm belief or conviction that termination of
appellant’s parental rights is in the child’s best interest. See Tex. Fam. Code §
106.001(2); Holley, 544 S.W.2d at 371–72. We overrule appellant’s second issue.
CONSERVATORSHIP
In appellant’s third issue, which he urges only in the event we sustain either
of his first two issues, he asserts the trial court should have appointed him either as
managing or possessory conservator of the child. Appellant conceded that if his
challenge to the trial court’s termination finding on best interest grounds is
overruled, section 161.207(a) authorizes the appointment of the Department as the
child’s sole managing conservator. See Tex. Fam. Code § 161.207(a) (providing
that the court shall appoint a suitable managing conservator “[i]f the court
terminates the parent-child relationship with respect to both parents or to the only
living parent”).
Because we have overruled appellant’s first two issues, determining that the
trial court’s decree terminating appellant’s parental rights must be affirmed, we
15
need not address appellant’s third issue.
CONCLUSION
We order the decree terminating appellant’s parental rights to E.A.F.
affirmed.
/s/ John Donovan
Justice
Panel consists of Justices McCally, Busby, and Donovan.
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