in the Interest of J.S. ( 2015 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
_________________
NO. 09-15-00150-CV
_________________
IN THE INTEREST OF J.S.
________________________________________________________________________
On Appeal from the 279th District Court
Jefferson County, Texas
Trial Cause No. C-221116
________________________________________________________________________
MEMORANDUM OPINION
Both J.C.S. (the Father) and E.L. (the Mother) appeal from the decree
terminating their parental rights to J.S. (the Child). 1 The Father challenges the
sufficiency of the evidence to support the trial court’s termination findings, and the
trial court’s failure to timely appoint him an ad litem attorney. The Mother also
challenges the sufficiency of the evidence to support the trial court’s findings. We
affirm the judgment of the trial court.
1
To protect the identity of the minor, we have not used the actual name of
the Child, parents, or other family members. See Tex. R. App. P. 9.8.
1
I. Background
A. The First Incident
Child Protective Services (CPS) has been involved with the Child since the
day after the Child’s birth on May 6, 2013. Susanne Jones, a CPS investigator,
testified that CPS received a report that the Mother had tested positive for
marijuana use during her pregnancy. Jones then met with the Mother at the home
of the Child’s maternal grandmother, where the Mother and the Child also resided.
According to Jones, the Mother admitted to smoking marijuana two to three times
a week during her pregnancy. Nevertheless, the Mother tested negative for
marijuana use at the Child’s birth. The Child’s meconium test, however, was
positive for prenatal marijuana exposure. Jones testified that both the Mother and
the Father admitted to smoking marijuana although not around the children. 2 Jones
determined the children were receiving appropriate care and residing in a clean and
appropriate home. Jones concluded there was a reason to believe the Mother had
physically abused the Child by exposing him prenatally to marijuana, but she
determined removal was not necessary and closed the case in August of 2013.
2
The Mother had another child residing with her at the beginning of this
case, but the court granted conservatorship of that child to that child’s father.
Therefore, that child is not the subject of this appeal.
2
B. The Second Incident
CPS assigned Jones to investigate this family again in April of 2014 after
CPS received a report of neglectful supervision, possible sexual abuse, and
domestic violence. By this time, the Mother had moved out of the maternal
grandmother’s home and into an apartment. Jones found the apartment to be clean
and did not observe any apparent health or safety hazards. She noticed a hole in the
wall, but the Father explained that it was there when they moved into the
apartment. Jones found no evidence to substantiate sexual abuse, but she found
evidence suggesting continued marijuana abuse. Based on her previous
investigation, Jones knew that the parents knowingly engaged in unsuitable
conduct for parents of young children and that they knew they presented a
dangerous environment for the Child. She testified that the parents again admitted
to her that they smoked marijuana two to three times a week, but they did so only
after the children were asleep, which caused the parents to believe that their use of
marijuana did not impair their ability to care for the children. Jones again spoke to
the parents about not using marijuana. Jones testified that after the first incident,
she had referred the Mother to some outpatient classes, but the Mother did not go
to the classes.
3
Jones asked the parents whether there was domestic violence in the home
and explained to the parents that domestic violence created a dangerous
environment for the Child. The parents denied any domestic violence, and Jones
found no evidence of domestic violence in the home.
At the time of her investigation, the Mother was employed. The Father was
unemployed, but he cared for the Child while the Mother worked outside the home.
CPS determined the children were not in danger and removal was not necessary.
C. The Third Incident
On May 26, 2014, an officer received instructions from dispatch to check on
the welfare of the Child at the hospital. The Child arrived at the hospital with a
fractured and deeply-lacerated nose and a serious injury to his left eye. The officer
spoke with the Father, who told the officer that the Child sustained the injury while
playing with his older half-brother. According to the officer, the Father’s story did
not account for the substantial injuries the Child had received. When the officer
informed the Father that the Child would possibly lose his eye, the Father “became
visibly irate and enraged.” The Father confronted the Mother, berating her and
yelling profanities at her regarding the incident. After the Father calmed down, he
changed his story and told the officer that the Mother injured the Child when she
threw a wooden chess box at the Father. The Mother admitted to throwing the
4
chess box, but she claimed she threw the box at the Father because the Father had
been assaulting her and she wanted to prevent another assault. With the exception
of some possible swelling under the Mother’s eye, the officer did not observe
injuries consistent with the Mother’s description of the assault. Similarly, the
officer did not observe any defensive injuries on the Father.
The parents informed another officer that was assisting with the
investigation that the argument developed when the Father saw a text message
conversation between the Mother and the Child’s maternal grandmother about the
Father’s obligation to provide for his family. The Mother’s explanation to this
officer of how she injured the Child was consistent with what she had described to
the first.
The second officer investigated the apartment where the parents claimed the
incident occurred. The parents told him that the Mother resided in the apartment
and the Father stayed there frequently as well, but he resided elsewhere. The
officer found that the apartment had a “very bad smell to it[,]” “was very messy[,]”
and had “very, very little food[.]” According to the officer, the apartment did not
have running water, and, as a result, the upstairs toilet was full of feces and there
was urine in the bathtub. The apartment had electricity but only one working
lightbulb. The officer saw what he believed to be marijuana lying in plain sight in
5
the kitchen. 3 He also noted that the upstairs of the apartment had very little
furniture, most notably, no beds for the children. What is more, there were clothes
covering the floor. He noted that someone had torn up one of the doors to an
upstairs bedroom. The trial court admitted a photograph of the door into evidence.
The photograph depicts a cracked door with two massive holes in the center. The
lower hole in the door appears large enough for a small child to fit through it. In
the officer’s opinion, the condition in which he found the apartment was consistent
with the allegation that domestic violence had occurred in the home.
CPS received notification of the incident involving the Child. CPS assigned
Jones to the family’s case and asked her to determine the Child’s medical needs in
light of his new injuries and to find appropriate placement for him. Jones testified
that from the beginning of the investigation, the Mother maintained the same
explanation of the Child’s injuries—i.e., the Mother accidentally injured the Child
while defending herself from the Father’s physical abuse.
D. Termination of Parental Rights
CPS removed the Child from the parents on May 27, 2014. The same day,
the Texas Department of Family and Protective Services (the Department) filed a
3
The officer testified that he did not have the substance he found in the
kitchen tested, but based on his extensive experience investigating crimes
involving marijuana and drug paraphernalia used to smoke marijuana, he believed
the substance to be marijuana.
6
petition for temporary managing conservatorship of the Child or, alternatively,
permanent managing conservatorship and termination of the parent-child
relationship between the Mother, the Father, and the Child. The trial court named
the Department temporary sole managing conservator and ultimately placed the
Child with relatives in June 2014. After a bench trial, the court terminated the
Father and the Mother’s parental rights to the Child. The parents have appealed the
trial court’s judgment.
II. Burden of Proof and Standards of Review
“The natural right existing between parents and their children is of
constitutional dimensions.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Due
in part to the severity and finality of the involuntary termination of parental rights,
the evidence in support of termination must be clear and convincing. See In re
J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002); Holick, 685 S.W.2d at 20; Tex. Fam.
Code Ann. § 161.001(1), (2) (West 2014). “‘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 Ann. § 101.007; In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). The
clear and convincing standard is an intermediate standard, which falls between the
preponderance of the evidence burden applicable in ordinary civil proceedings and
7
the reasonable doubt burden applied in criminal proceedings. In re D.T., 34 S.W.3d
625, 630 (Tex. App.—Fort Worth, pet. denied) (op. on reh’g) (citing State v.
Addington, 588 S.W.2d 569, 570 (Tex. 1979)). Thus, the State’s proof must be
more than merely the greater weight of the credible evidence, but it need not be
unequivocal or undisputed. Addington, 588 S.W.2d at 570.
In evaluating the legal sufficiency of the evidence, we examine all the
evidence in the light most favorable to the trial court’s finding to determine
whether a reasonable factfinder could have formed a firm belief or conviction that
the finding was true. J.F.C., 96 S.W.3d at 266. We must assume that the factfinder
resolved disputed facts in favor of its finding if a reasonable factfinder could do so,
and disregard all evidence that a reasonable factfinder could have disbelieved or
found to have been incredible. Id. However, we do not disregard undisputed facts
that do not support the trial court’s finding. Id. We give due deference to the
factfinder’s findings, and we cannot substitute our own judgment for that of the
factfinder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). The factfinder is the
“‘sole arbiter when assessing the credibility and demeanor of witnesses[.]’” Id. at
109 (quoting In re J.L., 163 S.W.3d 79, 86-87 (Tex. 2005)).
In evaluating the factual sufficiency of the evidence, we examine the entire
record to determine whether “the disputed evidence that a reasonable factfinder
8
could not have credited in favor of the finding is so significant that a factfinder
could not reasonably have formed a firm belief or conviction” about the trial
court’s finding. J.F.C., 96 S.W.3d at 266. If the evidence that could not be credited
in favor of the finding is so great that it would prevent a reasonable factfinder from
forming a firm belief or conviction that the statutory requirements have been met,
the evidence is factually insufficient. Id.
III. Predicate Termination Grounds
The Father and the Mother challenge the legal and factual sufficiency of the
evidence to support the predicate termination grounds. Regarding the Father, the
trial court found two predicate grounds for termination—subsections D and E.
Regarding the Mother, the trial court found three predicate grounds for
termination—subsections D, E, and R. Section 161.001(1) provides in relevant part
that termination of parental rights is warranted if the trial court finds by clear and
convincing evidence, in addition to the best interest finding, that the parent has:
(D) knowingly placed or knowingly allowed the child to remain in
conditions or surroundings which endanger the physical or emotional
well-being of the child;
(E) engaged in conduct or knowingly placed the child with persons
who engaged in conduct which endangers the physical or emotional
well-being of the child;
...
9
(R) been the cause of the child being born addicted to alcohol or a
controlled substance, other than a controlled substance legally
obtained by prescription[.]
Tex. Fam. Code Ann. § 161.001(1)(D),(E) & (R). Only one predicate finding under
section 161.001(1) is necessary to support an order of termination when the court
also finds that termination is in the child’s best interest. In re A.V., 113 S.W.3d
355, 362 (Tex. 2003). Therefore, we will affirm the termination order if the
evidence is both legally and factually sufficient to support any statutory ground on
which the trial court relied in terminating parental rights, and to support the best
interest finding. See In re E.A.G., 373 S.W.3d 129, 141 (Tex. App.—San Antonio
2012, pet. denied).
Subsection 161.001(1)(E) permits termination when clear and convincing
evidence shows that the parent “engaged in conduct or knowingly placed the child
with persons who engaged in conduct which endangers the physical or emotional
well-being of the child.” Id. § 161.001(1)(E). “‘Endanger’ means ‘to expose to loss
or injury; to jeopardize.’” In re M.C., 917 S.W.2d 268, 269 (Tex. 1996) (per
curiam) (quoting Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.
1987)). “Although ‘endanger’ means more than a threat of metaphysical injury or
the possible ill effects of a less-than-ideal family environment, it is not necessary
10
that the conduct be directed at the child or that the child actually suffers injury.” Id.
(quoting Boyd, 727 S.W.2d at 533).
Under subsection E, the evidence must show the endangerment was the
direct result of the parent’s conduct, including acts, omissions, or failure to act. In
re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). We
examine the parent’s conduct both before and after the child’s birth. In re D.M., 58
S.W.3d 801, 812 (Tex. App.—Fort Worth 2001, no pet.). Termination under
subsection E must be based on more than a single act or omission; the statute
requires a voluntary, deliberate, and conscious course of conduct by the parent.
J.T.G., 121 S.W.3d at 125. Because illegal drug use exposes a child to the
possibility that the parent may be impaired or imprisoned, the use of illegal drugs
may support termination under subsection 161.001(E). Walker v. Tex. Dep’t
Family & Protective Servs., 312 S.W.3d 608, 617-18 (Tex. App.—Houston [1st
Dist.] 2009, pet. denied); see also In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009);
In re Z.C., 280 S.W.3d 470, 474 (Tex. App.—Fort Worth 2009, pet. denied).
Domestic violence may constitute endangerment, even when not directed at
the child. See J.O.A., 283 S.W.3d at 346 (holding that evidence of domestic
violence may support an endangerment finding, even if the violence is not directed
at the child); In re C.J.O., 325 S.W.3d 261, 265 (Tex. App.—Eastland 2010, pet.
11
denied) (“Domestic violence may be considered evidence of endangerment. If a
parent abuses or neglects the other parent or other children, that conduct can be
used to support a finding of endangerment even against a child who was not yet
born at the time of the conduct.”) (citation omitted); In re J.I.T.P., 99 S.W.3d 841,
845 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (“A parent’s abusive or
violent conduct can produce a home environment that endangers a child’s well-
being. Domestic violence, want of [self-control], and propensity for violence may
be considered as evidence of endangerment.”) (citation omitted).
From our review of the record, we conclude the evidence supports the trial
court’s endangerment findings under subsection E for the Father and the Mother.
Here, the CPS investigator testified that a major concern was the parents’
resistance to change. Not only is there testimonial evidence that the Mother
admitted to using marijuana during her pregnancy, but also the Child’s meconium
test results provided objective proof of the Child’s prenatal exposure to marijuana.
The evidence presented at trial supports that the Child’s prenatal exposure to drugs
presented a danger to the Child’s physical and emotional well-being. The trial
court also heard evidence that the parents continued to use drugs throughout the
Child’s life even after CPS informed them they needed to stop. In fact, the Father’s
testimony indicates that he smoked marijuana the night the Child was injured.
12
While the Father claimed that he has not smoked marijuana since the night the
Child was injured, the trial court could have disbelieved this claim especially in
light of the Father’s long history of drug abuse.
Besides the parents’ continuous drug use, domestic violence was also shown
to have occurred in the home, culminating in the third incident of May 26, 2014.
We acknowledge that the parents’ dispute a history of domestic violence. We note
the parents’ respective versions of the events the night the Child was injured differ
drastically. As explained above, the Mother claims that the Father was assaulting
her and the Child was inadvertently injured while she attempted to protect herself.
According to the Father, the day before the incident he and the Mother had argued,
so he took the Child to his mother’s house to spend the night. He returned the next
day in an effort to fix his relationship with the Mother. He explained that he
became angry when he found out that the Child’s maternal grandmother refused to
help them and had been critical of his ability to provide for the family. The Father
denied assaulting the Mother, but he admitted there was some pushing during the
argument and that they had “tussled” over the phone. He testified that when he
turned his back, the Mother threw something at him and then he heard the Child
cry. He admitted that after the Child was injured, he pushed the Mother out of the
way because he was angry. The Father later claimed that he did not really “push”
13
the Mother. Instead, he claims he was just trying to keep her away from the Child
and used a “stiff arm[.]”
Regardless of who started the fight between the Mother and the Father, the
evidence supports that the parents allowed their volatile relationship and abusive
behavior toward one another to escalate to the point where the Child suffered
severe injury. Evidence in the record reflects that CPS warned the parents that they
could inadvertently injure the Child during one of their violent disputes. The Father
admitted that his interactions with the Mother had become physical on at least one
other occasion before the day the Child was injured. The evidence at trial supports
that the violence in the home presented a danger to the Child’s emotional and
physical well-being.
The Child’s maternal grandmother testified that while the Child was in the
Mother’s care, the Mother was very attentive and protective of the Child. The
grandmother testified that before the last incident involving the Child, the Mother
had never told the grandmother that the Father was abusive, and had not appeared
afraid of the Father. The grandmother believes the Mother could be a responsible
and loving mother for the Child.
Viewing all the evidence in the light most favorable to the trial court’s
judgment and recognizing that the trial court, as the factfinder, is the sole arbiter of
14
the witnesses’ credibility and demeanor, we hold there is clear and convincing
evidence on which a reasonable factfinder could have formed a firm belief or
conviction that the Mother and the Father had engaged in conduct or knowingly
placed the Child with persons who engaged in a conscious course of conduct that
endangered the physical or emotional well-being of the Child. See Tex. Fam. Code
Ann. § 161.001(1)(E); J.F.C., 96 S.W.3d at 266. While the Father and the
grandmother may have offered some controverting or explanatory evidence, the
trial court was free to disbelieve that testimony. Furthermore, based on our review
of the entire record, we conclude that the evidence is sufficient for the trial court to
have formed a firm belief or conviction about the truth of the allegations against
the Mother and the Father. We conclude that the evidence is legally and factually
sufficient to support the trial court’s findings under section 161.001(1)(E).
We overrule the Father’s third issue and the Mother’s first issue as it relates
to the trial court’s finding under subsection E. 4
4
We need not address the sufficiency of the evidence to support a violation
under subsections (1)(D) or (R). See In re D.S., 333 S.W.3d 379, 388 (Tex. App.—
Amarillo 2011, no pet.) (“If multiple predicate grounds are found by the trial court,
we will affirm based on any one ground because only one is necessary for
termination of parental rights.”). We therefore overrule the Father’s second issue
about subsection (D) and the Mother’s first issue about subsection (D) and her
second issue as to subsection (R).
15
IV. Best Interest of the Child
The trial court found that termination was in the Child’s best interest. Both
the Father and the Mother contend the evidence is legally and factually insufficient
to support this finding. In evaluating the best interest of the Child, we focus,
necessarily, on the child, not the parents. See In re R.F., 115 S.W.3d 804, 812
(Tex. App.—Dallas 2003, no pet.). We consider a non-exhaustive list of factors:
(1) desires of the children; (2) emotional and physical needs of the child now and
in the future; (3) emotional and physical danger to the child now and in the future;
(4) parental abilities of the individuals seeking custody; (5) programs available to
assist these individuals to promote the best interest of the child; (6) plans for the
child by these individuals or by the agency seeking custody; (7) stability of the
home or proposed placement; (8) acts or omissions of the parent which may
indicate that the existing parent-child relationship is improper; and (9) any excuse
for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72
(Tex. 1976); see also Tex. Fam. Code Ann. § 263.307(b). In reviewing the trial
court’s decision to terminate a parent’s relationship with a child, we consider that
“there is a strong presumption that the best interest of a child is served by keeping
the child with a parent.” In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). The party
seeking termination need not prove that each Holley factor weighs in favor of
16
termination. C.H., 89 S.W.3d at 27. A trial court’s best interest finding “is not
dependent upon, or equivalent to, a finding that the child has been harmed by
abuse or neglect or is in danger of such harm[,]” but rather it “is a term of art
encompassing a much broader, facts-and-circumstances based evaluation that is
accorded significant discretion.” In re Lee, 411 S.W.3d 445, 460 (Tex. 2013).
In this case, the Child is too young to express his desires regarding the
termination of his parents’ rights. See In re A.C., 394 S.W.3d 633, 643 (Tex.
App.—Houston [1st Dist.] 2012, no pet.)(“The young age of the child render[s]
consideration of the child’s desires neutral.”).
The Mother and the Father have a history of drug abuse. The Mother used
marijuana while pregnant with the Child and continued to use drugs after the
Child’s birth. The Father admitted to smoking marijuana off and on throughout the
Child’s life, including smoking marijuana the night the Child was injured. A
parent’s drug use supports a finding that termination is in the best interest of the
children. See In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no
pet.). Because drug-related conduct is a significant factor, the factfinder can give
great weight to that evidence when present. In re K.C., 219 S.W.3d 924, 927 (Tex.
App.—Dallas 2007, no pet.).
17
The Mother and the Father also have a history of domestic violence. There
was evidence that their issues were not isolated to one event, but rather the parents
had a problem that existed over time. The trial court heard testimony and saw
photographic evidence that the home in which the parents resided was in a
condition consistent with this violence.
The trial court heard evidence that the Mother and the Father allowed the
Child to reside in a home that exhibited unsafe living conditions. While there was
some evidence that the Father did not actually live in the apartment, the Father
testified that he had slept at the apartment every night since the Mother had moved
in and was constantly at the apartment. According to the Father, the apartment was
not normally in the condition in which the officers had found it that night. He
claimed that they were in the process of moving the Mother back to the
grandmother’s house, which explains why there was no running water. The Father
testified that they were no longer residing in the apartment and would only go to
the apartment to “chill.” However, the grandmother’s testimony does not support
the Father’s claim that they were in the process of moving back into the
grandmother’s house in May 2014. Rather, the grandmother testified that the
Mother had only been living with her since September 2014.
18
According to the Child’s grandmother, the Mother made sure the Child had
food and appropriate clothing. She testified that when she visited the apartment,
there was enough food in the home and there was running water. However, the
grandmother recalled that the Mother told her the water had been turned off a few
days before the incident. Regardless, the grandmother claimed the Child was not in
danger in the apartment.
Because of the injuries the Child received the night of the incident, the
Child’s eye had to be removed. The evidence in the record reflects that the Child
has special future medical needs, and that he will require special fittings for a
prosthetic eye at various points in his life. The Child also has a heart murmur and
suffers with upper respiratory issues, which may be linked to the Mother’s prenatal
marijuana use.
The parents contend that they can meet the Child’s needs. However, at the
time of trial, the Father remained unemployed and had not procured independent
living arrangements. The CPS investigator testified that the Father had convictions
for indecency with a child, trespassing, and possession of marijuana. Because of
his indecency with a child conviction, the Father must register as a sex offender.
The Father testified that his criminal background has somewhat hindered him from
19
obtaining employment. To his credit, the Father had appropriate monthly family
visits with the Child and only missed two visits.
Although the Mother had a pending criminal charge for the Child’s injuries,
she had not gone to trial at the time of the final hearing and the Mother had no
other criminal history. Because of the Mother’s bond conditions in the criminal
case, CPS was not allowed to let the Mother visit the Child during the pendency of
this case. To her credit, the Mother was employed at the time of the final hearing.
However, the Mother had been unable to obtain independent living arrangements.
Except possibly providing a few gifts at Christmas, the parents have not provided
financial support to help care for the Child. According to CPS, the parents did not
provide CPS with anything to show that their respective homes were safe or that
their situation had otherwise improved.
The Father denied that CPS ever told him he should attend parenting classes,
have a psychological exam, or attend anger management courses. He testified that
if CPS had told him he needed to do those things, he would have tried to complete
them even if it meant paying for the items on his own. The Father testified he has
never had a chance to be a father to the Child.
However, according to the CPS investigator, the parents have failed to take
responsibility for their part in causing the injuries to the Child. The evidence
20
supports that the parents remained unconvinced that the environment they created
placed the Child in danger. Even though CPS had warned the parents more than
once to stop using marijuana, the parents continued to do so. Even though CPS
informed the parents that an environment of domestic violence was unsafe for the
Child, the parents remained involved in the volatile relationship. There is evidence
that CPS informed the parents that they could seek help for their drug abuse and
domestic violence issues, but the parents did not seek help. In fact, according to the
CPS investigator, during CPS’s involvement with this family, the parents’ drug use
and domestic violence issues worsened. Based on the parents’ behavior and
attitudes, CPS determined that a family service plan for reunification would be
ineffective and CPS could not work with the parents.
The trial court, as the factfinder, could infer that the parents’ future conduct
could be measured by their past conduct. See In re D.M., 452 S.W.3d 462, 472
(Tex. App.—San Antonio 2014, no pet.) (“A fact finder in a termination case may
permissibly infer that a parent’s future conduct may well be measured by recent
deliberate past conduct as it relates to the same or a similar situation.”). Here, as
explained above, the parents have demonstrated continuous drug abuse, domestic
violence, and allowed the Child to remain in unsafe living conditions.
21
In contrast, the evidence reflects very favorably on the foster parents’
abilities to care for and meet the Child’s needs. As of April 21, 2015, the date of
the final hearing, the Child had resided with the foster family since June of 2014.
The evidence admitted at trial indicates that the foster family was very happy and
anxious to have the Child with them. The evidence showed there was a strong bond
and mutual love between the Child and the foster parents. The trial court heard
evidence that the Child’s foster family provided him with a stable home and that
they were willing and able to continue to provide and care for him. The CPS
conservatorship worker testified that the Child’s foster family is the best place for
him and it is in the Child’s best interests for the parents’ rights to be terminated
and the foster family be allowed to adopt him. The CASA representative testified
that she had visited the Child at the foster family’s home and the Child was very
happy and well adjusted. She testified that the home is “full of love.”
Viewing the evidence in the light most favorable to the best interest finding,
we conclude the trial court reasonably could have formed a firm belief or
conviction that termination was in the best interest of the Child. Based on our
review of the entire record, we further conclude that the trial court could have
reasonably formed a firm belief or conviction that it would be in the best interest of
the Child for the Father and the Mother’s parental rights to be terminated. The
22
evidence is both legally and factually sufficient to support the best interest finding.
We overrule the Father’s first issue and the Mother’s third issue each challenging
the trial court’s best interest finding.
V. Appointment of Counsel
The Father contends the trial court erred in not timely appointing him
counsel under section 107.013 of the Texas Family Code. See Tex. Fam. Code
Ann. § 107.013. The trial court must appoint an attorney ad litem to represent the
interests of an indigent parent who responds in opposition to a suit filed by a
governmental entity in which the State requests termination of the parent-child
relationship. Id. § 107.013(a)(1). Section 107.013(d) requires that “[a] parent who
claims indigence under Subsection (a) must file an affidavit of indigence in
accordance with Rule 145(b) of the Texas Rules of Civil Procedure before the
court can conduct a hearing to determine the parent’s indigence under this section.”
Id. § 107.013(d); see Tex. R. Civ. P. 145(b) (describing requirements and contents
of affidavit of indigency). Section 107.013 contains no specific timetable for
appointment an attorney ad litem to represent the parent’s interests. See In re
V.L.B., 445 S.W.3d 802, 807 (Tex. App.—Houston [1st Dist.] 2014, no pet.); see
also In re M.J.M.L., 31 S.W.3d 347, 354 (Tex. App.—San Antonio 2000, pet.
denied). However, the parent’s filing of an affidavit of indigency triggers the trial
23
court’s duty to appoint an attorney ad litem for an indigent parent. V.L.B., 445
S.W.3d at 805-06. If a parent claims indigence and requests the appointment of an
attorney at a status hearing or any permanency hearing held after the date the court
renders temporary orders, the trial court shall require the parent to complete and
file with the court an affidavit of indigence. Tex. Fam. Code Ann. § 263.0061(a),
(b). The trial court may, but is not required to, conduct a hearing to determine
whether the parent is indigent. Id. § 263.0061(b).
The trial court held a status hearing on July 22, 2014, in which the parents
appeared pro se. The CPS supervisor testified that the Department’s family plan of
service was for a relative to adopt the Child, with a concurrent plan for relative
conservatorship. The parents disagreed with the Department’s plan. The trial court
explained to the parents that if they were in opposition to the Department’s plan to
terminate their rights and have a family member adopt the Child, that they had a
right to an attorney and that if they could not afford an attorney, one would be
appointed for them. The Father indicated that he understood the trial court’s
explanation and while he wanted an attorney, he could not afford one. The trial
court then asked the Father a series of questions and determined the Father was not
indigent.
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The trial court held a permanency hearing on March 10, 2015. The Father
appeared pro se. During this hearing, the Father informed the trial court that he was
not able to afford counsel and needed the court to appoint him counsel. After
questioning the Father about his financial resources available at that time, the trial
court appointed counsel to represent the Father. The trial court then informed the
Father’s newly-appointed counsel of the date of the final hearing and indicated he
was unlikely to move the hearing date. The trial court then admonished the Father
to stay in touch with his appointed attorney and work with her to get ready for the
final hearing. Neither the Father nor his appointed counsel objected to the
appointment as being untimely or otherwise indicated that they would be unable to
prepare adequately for trial.
On April 14, 2015, the trial court held a hearing to consider the Mother’s
motion for continuance. The Department argued that it was in the Child’s best
interest to proceed to trial. The Father’s counsel indicated that she had no objection
to proceeding to the final hearing as set. The trial court denied the Mother’s request
for a continuance. The trial court held the final hearing in this case on April 21,
2015. Before the final hearing began, the Mother re-urged her motion for
continuance. At this point, for the first time, the Father’s counsel asked for a
continuance on the basis that the Father had not had an opportunity to work with
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CPS. The Father’s counsel argued that the Father did not know what to do with the
service plan because he was not represented by counsel. The trial court denied the
Mother and the Father’s request for a continuance. On April 23, 2015, the Father
filed a motion for the extension of the dismissal date in this case.
The trial court denied the Father’s initial request for a court-appointed
attorney ad litem. However, the trial court granted the Father’s second request and
appointed the Father an attorney ad litem on March 10, 2015. The record does not
reflect that the Father ever filed an affidavit of indigence as required by section
107.013. Thus, the Father failed to properly initiate the process for which his
appointment of counsel would become mandatory. See V.L.B., 445 S.W.3d at 805-
06.
Although the Father never filed the appropriate paperwork claiming
indigence, he asks this Court to determine whether the March 10, 2015
appointment was untimely. The Father claims he suffered irreparable harm from
the late appointment, but he does not explain what harm he suffered. He claims the
outcome of his case might have been different, but he does not explain in his brief
how or why the outcome would have been different had the court appointed him
counsel earlier in the case. The Father does not assert that his counsel was
unprepared or otherwise rendered ineffective assistance of counsel due to the
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timing of the appointment. In fact, at various points before trial, the Father’s
counsel indicated she had no objection with the current trial setting. We conclude
the record does not reflect that error, if any, in the timing of counsel’s appointment
probably led to the rendition of an improper judgment. See Tex. R. App. P.
44.1(a)(1). We overrule the Father’s fourth issue.
Having overruled all of the Father and the Mother’s issues on appeal, we
affirm the trial court’s judgment.
AFFIRMED.
______________________________
CHARLES KREGER
Justice
Submitted on July 7, 2015
Opinion Delivered October 1, 2015
Before McKeithen, C.J., Kreger and Johnson, JJ.
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