Pinnacle Gas Treating, Inc. v. Raymond Michael Read, Mark William Read, Owners, and Thomas I. Fetzer,II, Lienholder ( 2000 )

Pinnacle Gas Treating, Inc. v. Raymond Michael Read, Mark William Read, Owners, and Thomas I. Fetzer, II, Lienholder

  IN THE

TENTH COURT OF APPEALS

No. 10-99-257-CV

     PINNACLE GAS TREATING, INC.,

                                                                              Appellant

     v.

     RAYMOND MICHAEL READ,

     MARK WILLIAM READ, OWNERS,

     AND THOMAS I. FETZER, II, LIENHOLDER,

                                                                              Appellees

From the 278th District Court

Leon County, Texas

Trial Court # 11745-A

                                                                                                                   

O P I N I O N

                                                                                                                   

      This is an appeal arising from a condemnation suit. Pinnacle Gas Treating, Inc. (Pinnacle) filed several condemnation suits in Leon County. Because Leon County is in three judicial districts, the clerk rotated the petitions among them. Tex. Prop. Code Ann. § 21.013(d) (Vernon Supp. 1999). The District Clerk assigned the petition in this case to the 278th District Court. Judge Sam Bournias of the 87th District Court appointed special commissioners who gave notice, held a hearing, and made an award of damages to the condemnees (appellees in this appeal). Pinnacle “appealed” from the award. After Pinnacle deposited the amount of the award, Judge Bournias signed an order granting it a writ of possession. The condemnees then filed a plea to the jurisdiction and a motion to dismiss, asserting that the appointment of the special commissioners by Judge Bournias was void. Judge Jerry Sandel of the 278th District Court dismissed the condemnation proceedings and directed the cause to proceed to trial on the condemnees’ counter-claims. Pinnacle attempts to challenge Judge Sandel’s order through this direct appeal.

      Pinnacle asserts that we have jurisdiction under Section 51.014(a)(4) of the Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(4) (Vernon Supp. 1999). Section 51.014(a)(4) states:

A person may appeal from an interlocutory order of a district court, county court at law, or county court that:

. . .

      (4)  grants or refuses a temporary injunction or grants or overrules a motion to dissolve a temporary injunction as provided by Chapter 65; . . . .

Id.   

      Generally, appeals may be taken only from final orders or judgments. See Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992). Interlocutory orders may be appealed only if permitted by statute. Id. Although Judge Sandel’s order dismisses the condemnation proceedings, it also directs that the matter proceed to trial on remaining issues. We do not believe that the order is an appealable temporary injunction or order dissolving a temporary injunction. Nor is it one which disposes of all parties and issues, so as to be final. See id. Accordingly, we have no choice but to dismiss this appeal.

      Pinnacle asserts in its brief that an alternative basis for granting relief would be to issue a writ of mandamus. Pinnacle has cited no authority, nor have we found any, to suggest that mandamus relief may be sought alternatively in a direct appeal. A petition for a writ of mandamus commences an original proceeding that is governed by different rules than the rules governing direct appeals. See Tex. R. App. P. 52. We will not entertain this request.

      This cause is dismissed for want of jurisdiction.

 

                                                                       BILL VANCE

                                                                       Justice

Before Chief Justice Davis,

          Justice Vance, and

          Justice Gray

Dismissed for want of jurisdiction

Opinion delivered and filed February 2, 2000

Publish

other grounds by In re J.F.C., 96 S.W.3d 256, 267 (Tex. 2002) and In re C.H., 89 S.W.3d at 26 (holding that a parent’s neglect of older children could indicate that the child the subject of the suit “would face this type of treatment in the future if returned” to the parent); In re Baby Boy R., 191 S.W.3d 916, 925 (Tex. App.—Dallas 2006, pet. denied) (holding that a parent's guilty plea of aggravated sexual assault of his step-daughter was evidence of conduct endangering to the well-being of his unborn child); In re W.J.H., 111 S.W.3d 707, 716 (Tex. App.—Fort Worth 2003, pet. denied) (holding that abusive conduct toward other children “can be used to support a finding of endangerment even against a child who was not yet born.”).  Thus, any abusive or neglectful conduct by Jesse toward J.A.R., J.A.R., and J.R.’s older sibling, H.N.S., is relevant in an inquiry to determine whether Jesse’s parental rights to the children should be terminated under section 161.001(1)(E).

There was testimony from caseworkers at the Department that there was a likelihood that all of the children were at risk for future abuse similar to that which H.N.S. suffered because the younger children were beginning to show the same behaviors which led to Jesse’s frustration with H.N.S.  At the time of the trial, Jesse was incarcerated because he had pled guilty to endangering a child for the egregious treatment of H.N.S.  Jesse further testified that he had an anger problem, which he contended was addressed through an anger management course he took while in prison. 

There was conflicting testimony regarding whether Jesse’s biological children were aware of the abuse perpetrated against H.N.S.  However, H.N.S.’s next older sibling, J.M.S., who was also not Jesse’s biological child, was fully aware of the treatment of H.N.S. and that it was used as punishment by Jesse.  While in foster care, J.M.S. would state that H.N.S. needed to go to the closet when she was in trouble. J.A.R. and J.A.R. were in the home during some of the time during the abuse, and although it appears that they were very young, there was testimony that they may have been able to perceive to some extent the trauma suffered by H.S.N. due to Jesse’s cruel treatment.  J.R. was born in the weeks prior to the removal of the children and thus, not presently affected.

Further, Jesse was serving a twenty-four month sentence in the state jail for the endangerment charge, but additionally a ten year community supervision for felony DWI he was serving was revoked and he was sentenced to eight years in prison for that offense.  That sentence was being served concurrently with the endangerment sentence, and Jesse expected to be released on parole almost immediately after the termination hearing.  Until the time of his release, he intended to place the children with his parents, from whom the children had previously been removed. 

Using the appropriate standards as set forth above, we find that the evidence was both legally and factually sufficient for the trial court to have determined that Jesse engaged in a course of conduct that endangered the physical or emotional well-being of the children.

Best Interest of the Children

To terminate the parent-child relationship, the trial court must also find that termination is in the best interest of the children.  Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).  When reviewing the sufficiency of the best-interest evidence, we apply the nonexclusive factors found in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).  These factors include (1) the desires of the children, (2) the emotional and physical needs of the children now and in the future, (3) the emotional and physical danger to the children now and in the future, (4) the parental abilities of the individuals seeking custody, (5) the programs available to assist these individuals to promote the best interest of the children, (6) the plans for the children by these individuals or by the agency seeking custody, (7) the stability of the home or proposed placement, (8) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one, and (9) any excuse for the acts or omissions of the parents.  Id.  The Department need not prove all of these factors.  In re C.H., 89 S.W.3d at 27.  In an appropriate case, proof of just one factor may be sufficient.  Id.

Jesse contends that the evidence before the trial court consisted almost entirely of contradictory opinions regarding the best interest of the children; however, he does not explain what those contradictions were.  The testimony from each of the witnesses except for Jesse was that termination was in the best interest of the children. 

Jesse further contends that the basis for the opinions regarding best interest was his lack of participation in services which was impossible due to his incarceration.  However, Jesse was able to and did participate in some services prior to his incarceration, including therapy.  His therapist had reported while they discussed appropriate parenting skills, Jesse did not demonstrate those skills during scheduled visits with the children while they were voluntarily placed outside the home. During that time, the therapist had serious concerns about Jesse’s ability to apply good parenting skills, even after taking parenting classes and participating in therapy. 

The Department’s witnesses stated that they believed that there was a significant risk that Jesse would abuse or neglect the children if returned to him.  He intended to place the children with his parents who were allowing a registered sex offender to have contact with the children.  Jesse proffered no witnesses on his behalf other than himself to counter the Department’s contentions, and the trial court may have found his testimony to be incredible. 

The Department’s witnesses also testified that the children were “absolutely” adoptable due to their young ages and that adoption was their permanency plan as soon as possible. 

Using the appropriate standards, we find that the evidence was legally and factually sufficient to support the trial court’s finding that the termination of the parent-child relationship was in the best interest of the children.  We overrule issue two.

CONCLUSION

            Having found no reversible error, we affirm the judgment of the trial court.

 

 

                                                                        TOM GRAY

                                                                        Chief Justice

 

Before Chief Justice Gray,

            Justice Davis, and

            Justice Scoggins

Affirmed

Opinion delivered and filed July 13, 2011

[CV06]

---

[1] The mother of all five children, Melissa, resided in the home with Jesse and the children at the time of the removal.  Melissa signed a voluntary affidavit of relinquishment and her parental rights had been already terminated at the time of the final hearing pursuant to an order of termination.